:
I call this meeting to order.
Welcome to meeting number 69 of the House of Commons Standing Committee on Public Safety and National Security. We will start by acknowledging that we are meeting on the traditional unceded territory of the Algonquin people.
Today's meeting is taking place in a hybrid format pursuant to the House order of June 23, 2022. Members are attending in person in the room, and remotely using the Zoom application.
Pursuant to the order of reference of Friday, November 25, 2022, the committee continues consideration of Bill , an act establishing the public complaints and review commission and amending certain acts and statutory instruments.
We have today two panels of witnesses. In the first hour, in person, from the National Police Federation, we have Brian Sauvé, president; by video conference, as an individual, we have Heather Campbell, Calgary police commissioner; and from the Customs and Immigration Union, we have Mark Weber, national president.
You will each have up to five minutes for opening remarks, after which we will proceed with rounds of questions.
Welcome to all of you.
I invite Mr. Sauvé to make an opening statement, please.
:
Good morning, Mr. Chair, and thank you for having us.
My name is Brian Sauvé. I'm the president of the National Police Federation, the certified bargaining agent for members of the RCMP.
Civilian oversight of law enforcement is essential for ensuring public trust and confidence. With nearly 20,000 members of the RCMP handling over three million documents and interactions each year, complaints can be expected. An independent, timely and transparent complaints process is essential.
To that end, the NPF believes that Bill presents the government with an opportunity to improve oversight and complaints processes across the RCMP and the CBSA. Bill C-20 offers an opportunity to address the issue of the police investigating the police and to make the PCRC a fully independent public complaints body. Amending this bill would meet the government's numerous and consistent mandate commitments and address the public interest in increased civilian oversight and transparency of law enforcement.
To that end, the NPF is making the following three recommendations.
First, the PCRC should end the practice of the police investigating the police. Under the current CRCC model, members of the RCMP are tasked with investigating most of the public complaints filed. It has been noted many times that our members handle these investigations of their colleagues in a professional and impartial manner. However, this does create a perception of bias and possible conflict of interest.
Independent civilian oversight of law enforcement is a critical component of bolstering public and member trust, which the NPF supports. The current system is not fully independent and does not serve to reinforce the government's intent to build public trust in oversight of law enforcement. While there are many advantages to having the police investigating the police, many provincial public complaints bodies have utilized a hybrid investigative model. This model includes the involvement of civilian investigators in the investigative process, with some reliance on experienced police investigators, either retired or serving.
Second, the PCRC should be appropriately resourced to conduct its own investigations, having the authority to make independent decisions and recommendations that are not politically motivated. Currently, the CRCC receives an average of 3,500 public complaints per year. However, most are not investigated, as they are deemed frivolous, vexatious or out of time. Estimating an average of 1,500 files per year that require a 40-hour investigation each, we're talking about approximately 60,000 work hours taken from communities in which our members could be engaging in core policing duties. That equates to about 30 full-time RCMP officers. Unfortunately, there is no cost-recovery mechanism for those communities to regain those hours.
Bill should be amended to allow the PCRC to conduct its own investigations, using and hiring its own investigators, and stop the downloading onto other resources. Failing this, if members of the RCMP are to continue to conduct investigations, there must be a cost-recovery mechanism established to compensate for the countless hours and overtime that our members are spending on public complaints investigations that take them away from their core policing duties. This is particularly harmful in smaller detachment areas, where all resources are vital to daily operations.
Third, the PCRC, with the addition of the CBSA, needs an increase in funding and staff. The CBSA will create an influx of new complaints, and more resources will be needed to keep pace. The estimated increase in public complaints further emphasizes the need for the PCRC to be established as a truly independent body that is effectively resourced to complete investigations through the hiring of its own investigators, similar to provincial public complaint bodies.
To be effective, the government must enact changes to Bill to address concerns about transparent, fair and timely investigations while also ensuring that the public interest is being met. These changes must strengthen the ability of the PCRC to be fully independent to conduct evidence-based investigations away from any political agenda of the day, while ensuring it is fully resourced to act and conduct its own investigations.
Thank you. I am subject to any questions.
:
Thank you very much. Good morning.
I appreciate the invitation to appear as a witness at the House of Commons Standing Committee on Public Safety and National Security. Although I am a commissioner with the Calgary Police Commission, my testimony today is provided as an individual. My comments are exclusively my own and not those of the Calgary Police Commission.
My name is Heather Campbell, and in my work and in my life, I come to you from Calgary, or Mohkinstsis, where I live as a guest on the traditional indigenous lands of Treaty 7 and the Métis Nation of Alberta, Region 3.
I will prioritize countering racism, systemic racism and systemic bias in policing in this presentation. I will address data collection, data management and data sharing in policing, particularly the need for demographically segmented data in complaints, and in all areas of policing, in the question and answer period, time permitting.
Policing in North America, from its creation, has been deeply rooted in racism. When it comes to police reform, it isn't bad apples, and it isn't a bad barrel. It is literally the soil. Success in police reform will come only when, bravely and transparently, the culture and environment—the soil—is modified such that it poisons the landscape in which racism and systemic racism flourish in policing.
A detailed plan is required for the transformation of the culture of a police service that has systemic racism within its walls and its ranks. Cultural transformation is not an overnight action. It took two and a half years for the existence of systemic racism in policing to be accepted and understood by a majority of the police service in Calgary. There are still those who rail against it, and I often personally receive backlash when I identify or note a relapse in the progress made towards anti-racist behaviours.
One of the most challenging things in my life was reading the 1,109-page report called “Missing and Missed”. The report, prepared for the Toronto Police Services Board, was largely prompted by concerns that the McArthur-related investigations in Toronto and Peel Region were damaged by systemic bias.
Many community members felt that the Toronto police “remained uninterested in the disappearances of McArthur's victims until Mr. Andrew Kinsman, who was not a person of colour, was reported missing.” The review of these cases takes into account the presence and the impact of systemic bias, discrimination and differential treatment by Toronto police and in the investigation of missing persons. The Honourable Justice Gloria Epstein, in her executive summary, wrote, “The disappearances of McArthur's murder victims were often given less attention or priority than the cases deserved.”
I will be far more direct and plain-spoken than Justice Epstein. They were brown, and they were Black. They were gay, and they were trans. When they went missing and were eventually murdered, the police didn't look that hard for them.
Accordingly, there should be dedicated resources and resource planning to provide critical attention to missing persons investigations, particularly for cases involving missing and murdered indigenous women, girls and two-spirit persons.
A substantial finding in the mass casualty report from Nova Scotia was:
The perpetrator's pattern of violent and intimidating behaviour was facilitated by the power and privilege he experienced as a white man with professional status and substantial means.
Systemic bias in policing favoured a privileged perpetrator, despite a wealth of red flags that had been reported to the police by members of marginalized communities.
A cisgender, white, male, middle-aged, privileged denturist murdered 22 people, and police missed the signs, partially because of systemic bias. The transformation and cultural change to nullify the training and thinking that contributed to that error is the incredible challenge ahead of a civilian oversight body.
Consideration must be given to the investigative skills and tools of the complaints investigations and professional standards teams. Do the investigators have the skills to investigate a case in which the only complaint is racism? Have the investigators rid themselves of historic systemic biases and of inherent discrimination to evaluate evidence of racism and white supremacy in a case or a complaint? Training and skills improvement may be required, and investigators need to be open and receptive to the training and new skills that are focused on reduction of bias.
Establish the complaints and review commission so that it has an opportunity for success. Complaints and management of complaints are invariably about justice. Justice is more than policing, and if that principle is forgotten in this legislative exercise, there will be a continuation of the rallying cry from Canadian streets: “No justice, no peace.”
Thank you.
Mr. Chair and members of the committee, thank you for the opportunity to appear before you here today. As the national president of the Customs and Immigration Union, which represents Canada's frontline border officers and other personnel working for the Canada Border Services Agency, it is always a pleasure to assist this committee.
Regarding the proposed legislation, we have a number of concerns that I'd like to highlight, acknowledging that the type of civilian oversight the bill aims to create is something that already exists for most law enforcement bodies, and that we agree it is paramount for our government and its agencies to develop the tools and resources necessary to address issues linked to overreach, systemic discrimination and abuse of authority.
That said, the bill seems to be missing the mark when it comes to addressing systemic issues already present within the agency, which is infamous among its employees for letting gross abuse by management run unchecked. To be candid, I have lost count of the number of times CBSA management has, in one way or another, done everything in its power to minimize, delay or brush aside complaints from employees regarding highly problematic behaviour from managers, choosing rather to use the robust discipline process already in place to punish employees through unfair and heavy-handed disciplinary actions.
I see nothing in this bill that would help curb this, and I'm concerned that the proposed commission would mostly serve as an additional punitive tool to be used toward our public-facing members without really addressing entrenched cultural issues within the CBSA and its management structure. What we're talking about here is an agency that year after year refuses to hire an appropriate number of frontline officers, preferring to invest in automated technology, which, when it fails—and it does fail—only exacerbates existing issues: an automated technology that makes Canada less safe.
It is an agency that claims to be committed to addressing systemic racism but arbitrarily cancels anti-racism and anti-discrimination training developed in large part by its own racialized employees. It is an agency that does everything it can to set itself up for human rights complaints by staffing immigration holding facilities with poorly trained, contracted-out security guards.
All of these aspects play an underlying role in any complaint made to the commission, and they must be addressed.
We also have real concerns with the absence of clear language around an employee's right to procedural fairness and natural justice and to representation during administrative investigations, and around the time limits for investigations as well. In our experience, investigations within CBSA are already lengthy—more often than not, unnecessarily so. Bill does not address this. In fact, under this new legislation, it's likely that investigations could take years to be completed, which is fair neither for the complainant nor for the party under investigation.
I should point out that this bill is being discussed while more than 8,000 officers and other law enforcement personnel we represent at the CBSA are currently in bargaining with the agency and with Treasury Board. It is concerning that the Government of Canada would seek to pass legislation that could potentially change the nature of employment for our members, which would effectively bypass the bargaining process. At the very least, the union should be afforded the opportunity to address the proposed legislation and its ramifications at the bargaining table. Ultimately, the legislation should also include clear language guaranteeing that collective agreement rights are maintained, especially when it comes to investigations and representations.
I would like to end by pointing out that for many of our members, this latest piece of legislation is likely to be seen as yet another example of the agency and the government treating its border officers as proper law enforcement and public safety personnel only when it suits them.
The role of border officer has changed tremendously over the past 25 years, and our law enforcement members are an integral part of this country's public safety framework. The proposed legislation of this new civilian oversight body implies that the federal government agrees, yet our members are not recognized as public safety personnel under major public service legislation, such as the Public Service Superannuation Act and the Income Tax Act and their associated regulations. The government cannot pick and choose. For Bill to be coherent, it must be accompanied by language confirming the status of border officers as public safety personnel across federal legislation. Changes to these two acts must happen as well.
I thank you, and I look forward to your questions.
I want to build on some of the remarks you made regarding the independent model your organization is looking for, to further support—from my interpretation of what you said—RCMP officers.
In discussions that we've had, and certainly upon reviewing the policy paper you put forward on this bill, it would seem that there are provincial models like SiRT in Nova Scotia and ASIRT in Alberta. I believe that every province has a similar independent body, which is triggered when officers use lethal force or in other serious circumstances.
My understanding is that those are completely independent bodies. We don't have officers investigating each other. They're fully independently funded, and independent individuals come in to investigate those serious situations.
Is that a correct assessment of the provincial investigation model?
:
At the CBSA, you're absolutely correct, our frontline numbers are not nearly what we need. We estimate that we need between 2,000 and 3,000 additional officers on the front line. In the time you described, we've added about 2,000 middle managers to the CBSA. It seems to be the only section that is growing.
Our officers are exhausted and under incredible stress. We have summer action plans that have mandatory overtime. The amount of leave we can take is limited. Many officers resort to leave without pay just to get some time off.
Of course, when you look at the lineups and volumes we're dealing with and talk about what's being proposed under Bill , with travellers waiting sometimes two to three hours to get to an officer, we are more and more dealing with people who are arriving to us furious. That is the baseline of what we have to deal with, quite often, when travellers finally get to us.
The solutions being proposed by the CBSA are automated kiosks, e-gates and things like that. In terms of public safety, they are scary, in our opinion. They have done nothing to alleviate the backlog. We're desperate to get more people working at the border, on the front line.
In my remaining minute, I think everyone agreed in their opening remarks that oversight is very, very important. We know that certainly the frontline officers in both the RCMP and the CBSA wield considerable authority, so it's important that there be oversight. However, I was concerned to learn in my discussions with you that very often, when these investigations happen, which sometimes are serious and sometimes can be frivolous and vexatious—which, I think, is the word that Mr. Sauvé used in the RCMP context—officers are going up to a year without pay, and in order to get that pay back, if the complaint is unfounded, they have to file a grievance.
Can you just update the committee? Is that an accurate description that I provided there? What should be done about it? It just seems very unfair. If it's unfounded and they miss a year of pay.... I don't know a lot of folks who can go a year without a paycheque.
:
Thank you, Mr. Chair, and thank you to all of you for joining us today.
I want to begin by digging into something all three of you have touched on in different ways, and that is the importance of oversight.
I'd like to start, Mr. Weber, with you.
One of the concerns that have been raised repeatedly is that there is very, very limited recourse when it comes to complaints regarding people's experiences with CBSA. We've heard this from racialized communities. We've heard this from the Muslim community quite widely.
Of course we acknowledge all the challenges. I want to be clear. We acknowledge the challenges about needing more people. This is something we need to address. I think we all accept that.
With that baseline in mind, I would like to hear what your understanding is of the nature of these complaints and how you think people can best feel confident that there is recourse for the individuals who have these challenges when they are interacting with certain folks at CBSA.
:
Thank you very much, Mr. Noormohamed. Maybe I'll switch to our comments around data and data sharing, because those things are fundamental and they are some of the things actually articulated in Bill . A transformation is required. One of the many lessons learned from the mass casualty report is that there needs to be a naming and countering of the operation of misogyny, racism, homophobia and other non-egalitarian attitudes within policing, and that needs to be placed at the heart of the strategies to improve everyday policing. That's what I think Mr. Weber was indicating with respect to real change. To improve everyday policing in an effective way, you need good data; you need demographically segmented data, and you need to be brave enough to actually address the challenges when you have that demographically segmented data.
In Calgary the racial demographics are wonderfully and increasingly diverse. Calgary is approaching 44% people of colour, according to the most recent data. Realistically, in less than three years the term “visible minority” won't make statistical or mathematical sense, but it's still used in data collection and in policing. Frankly, no one wants to be referred to by that fairly terrible, archaic and socially diminishing term.
Training and approaches need to be developed to train police services in the collection of demographically disaggregated data in a credible and consistent fashion. It's police, after all, who actually need to ask people in Canada for that information. Data collection currently occurs using a method called officer perception—basically, where the presenting police services member decides, based on their lived experience and knowledge—or lack thereof, quite frankly—a person's demographic characteristics for collection.
Data collection processes and approaches need to be established for credible data collection, consistent data collection and national data collection across Canada. Collected data must be analyzed with effective interpretation. Policing bodies need to be accountable for addressing the results the analysis demonstrates within a defined time frame. We can't have this ongoing, “Well, we've learned this,” and three years later there's another report and, “We've still learned this,” and nothing has happened. When the Ontario Human Rights Commission required the Toronto Police Service to collect race-based data, those data merely reflected what in certain cases Black people had said and known for decades. The finding of note in the Toronto report was the section on the use of force. Here, Black people were 2.3 times more likely than white people to have firearms pointed at them by the police when no other weapons were perceived.
No longer can—
Go ahead. Thank you.
Thank you to the witnesses for being here today.
We are beginning our study of Bill , and I am still trying to understand all of its ins and outs.
Mr. Sauvé, you made three concrete recommendations, and I thank you for that. First, you said we need to put an end to situations where the police investigate the police, and I'd like to understand how the new commission will work.
In the legislative summary prepared by our analysts, there is talk of two options that would be available to complainants. They could either file the complaint directly with the RCMP or the Canada Border Services Agency, or CBSA, or address it directly to the new commission. As for the people who will make up this commission, they would be civilians who have never worked for the RCMP or CBSA.
Will Bill C‑20 put an end to the practice of the police investigating the police, in your view, or is there more work to be done?
:
I don't think that's enough.
If you look at the processes that exist today, obviously, once a complaint is received and sent for investigation, there's a general ballpark figure of about 60,000 man-hours, or person-hours, that is used to investigate them. Most of those are done within the 30-day statutory time frame and referred back to the CRCC and the complainant.
Out of those, there are about 300 to 320 cases in which the complainant may ask for a review and further investigation. That comes back to the RCMP. If they're again not satisfied, then the chair of the CRCC can institute a further investigation. That happens in about 100 to 150 of those files annually. That's when they have their dedicated staff of about 80 or 85 across the country, who take on the file.
I don't think the amount proposed is enough. I don't know how much it should be, but we're just bringing it up and sounding the warning bells. We have seen numerous civilian oversight bodies across the country that have tried to operate on a wing and a prayer and then ended up with considerable delays, which is not good for the public. It's not good for the members of the agency, and it's not good for civilian oversight generally.
Yes, I believe that what we need is an overall culture change.
I think we need more education. We need more than just identifying one bad actor and disciplining them for x number of days and then moving on as though that has corrected anything. I think that in the CBSA as a whole, and in upper management especially, the culture has to change. As a union, we've brought forward numerous really disturbing complaints about managerial behaviour, and we may as well have not. They disappear. Essentially, if you're a manager and a complaint goes in, absolutely nothing is happening.
We have the example of the chief of operations in 2011, who ordered the strip search of a busload full of students after the officers had released them and were confident that they were clear to go. Was there any discipline? There was none. That's one case. I could think of many that are much worse than that. Simply nothing happens. That has to change.
I think that giving officers the ability to use Bill to bring forward issues they see every day is something that under the current proposal is not there. We cannot use the process to bring forward the concerns we have and the events we witness. I think that would make a big change. Overall, mismanaged policies, application of policies and, again, the staffing levels: Those are things that are not the officer's fault. That's a culture. That's upper management at CBSA.
Again, when we're dealing only with complaints coming in from the public, well, the public interacts with the officer, who is the one there when they've been waiting three hours to get to the border to finally make their declaration and, like I said, arrive quite furious. Our officers, again.... I think it's overall. I could call it a mental health crisis. They are exhausted. They are working almost unlimited overtime, with no ability to get leave. The summer is going to be even worse as we go through it. This happened last year and the year before, and I don't see any kind of help coming. Our numbers never go up. It's a desperate situation.
It takes overall cultural and total change within the agency.
:
Thanks to all of our witnesses for their very rich testimony.
I'm going to start with you, Mr. Weber. I have two things.
First off, you've very clearly identified that in Bill , implicitly, CBSA employees are recognized as public safety officers. What are the other things the government should be doing to fully recognize CBSA border officers as public safety officers?
What are the changes to the Public Service Superannuation Act, regulatory changes or any changes to the Income Tax Act that would clarify this, so that we no longer have this weird situation in which the federal government pretends border officers are not public safety officers in some circumstances, and in others acknowledges that? That's my first question.
On my second question, I think you've been very eloquent in saying you support Bill 's aspect of making CBSA employees accountable, but what I hear you saying is that CBSA management is not accountable. That is fundamental to putting in place civilian oversight in a way that allows systemic reform. That is what I think we're all looking for.
What are the changes we could bring to Bill that would make sure that CBSA managers are accountable for their actions?
I'll take the first question first.
Legislatively, there are two things that would have to change. Number one would be the Public Service Superannuation Act. Border officers would have to be added as an occupational group, as exists for all other occupational groups, including corrections officers. That would have to change. The associated regulations would have to change accordingly as well.
The second piece of legislation would be the Income Tax Act regulations. There, we would have to start including FB members in the definition of “public safety occupations”. Those two things would go a long way, and they would solidify and codify that we are indeed public safety officers.
Among the things that would have to change in the proposed Bill to bring about real cultural change—which, for CIU, would be the goal—is an ability for CBSA officers to use the process as well to bring forward incidents and things they know to bring about that kind of change, and for those to be investigated as well through the process.
We work in the milieu all day. We are likely to see a lot more than a traveller who's coming through and whose interaction with the CBSA might be for 10 seconds. Right now, the way it's currently defined, that door is shut to us. Again, a way to ensure that it is followed up on....
Historically at the CBSA, the higher you go in rank, the less accountability there always is. We're very confident in many of the things we bring forward regarding managerial behaviour. If this was one of my members, I would be advising them, “You're probably going to be fired.” There's no follow-up. Absolutely nothing happens in general. It is frustrating at our level to see that happen.
Again, change has to come from above. I would really like us to be able to use what's available to the public here.
:
Well, thank you very much, Chair, and thank you to our witnesses for being here.
I'm just going to carry on with both Mr. Weber and Mr. Sauvé on what Mr. Julian was talking about. I have serious concerns with the current proposal, with resources, given how this legislation is written and how it's going to be proposed to look after both the RCMP and the CBSA. My guess would be that what is being proposed for resources for the PCRC is insufficient just for the RCMP, and that hasn't even included the CBSA yet. That's a huge red flag for me.
While I support wholeheartedly the idea of public oversight and review—it's absolutely necessary in all forms of law enforcement—it is severely under-resourced.
Mr. Sauvé, quickly, I think there's still some confusion, even around this table and in the public, about how the PCRC will be looking after complaints moving forward in the process. You said you don't want police looking after investigating police, and I get that. What you're specifically saying is that you don't want the RCMP to investigate the RCMP. That's not police investigating police, right?
Some of the hybrid models you talked about have law enforcement, retired or current, actually investigating in a hybrid model along with civilian investigators. It works well. I'm from Alberta, and I'm very familiar with that particular process.
In your estimation and as Mr. Julian has asked, is there a process that can be changed in the legislation? More than just saying that we need to add more money and more resources to the PCRC, is there a process we can look at that will make it more efficient, given the current legislation? What do we need to do differently?
:
They are completely different mandates. If you're a member of the RCMP in Alberta or anywhere we provide uniformed policing, even federal policing in Ontario or Quebec, you're subject to three separate oversight bodies.
One is the statutory regime of civilian oversight, such as ASIRT, which investigates complaints of serious harm or death when we happen to invoke use of force. That is where a member of the RCMP could face a criminal charge.
The second one, obviously, is through the RCMP Code of Conduct, which is our disciplinary regime. That is up to and including dismissal.
The third one is the future PCRC, which deals with complaints from the public.
In all of those areas, a member of the RCMP could face an investigation by ASIRT, the RCMP professional standards...and the CRCC. Those are three different levels. There are three possible, different results. One could result in jail time. One could result in dismissal. The third could result in operational and policy changes, or changes to the RCMP itself.
Yes, the data should be collected. I believe right now in the bill, it's clause 13, the “Annual report”, that provides for data collection, but it is rather light.
To Mr. Sauvé's point, the RCMP has been developing a national approach to the collection, analysis and reporting of race-based data in policing since probably about July 2020, in collaboration with the Canadian Association of Chiefs of Police and Statistics Canada. That process has been slow, but it is critically important.
The legislation in Alberta lacks in some areas. However, it does require, for a number of street checks or officer contacts or “info posts”, as they're called in Calgary, that exceed the relative statistical demographics of a community, that the chief of police provide a reconciliation and justification to address any overrepresentation of one group, particularly for racialized and indigenous people in the data.
It's important that this data analysis and sharing occur in a distinct fashion at a community level, lest the significance of the data and analysis be diluted to basic ineffectiveness.
Mr. Weber, when we were discussing systemic issues within the CBSA earlier, you talked about the importance of changing the culture. Just to be clear, I'd like to know if you're proposing that agents, too, be able to turn to the new commission.
Would they be able to lodge complaints with the commission when they encounter a problem involving a superior or a manager? If so, not only the public, but agents, too, on the inside, would be able to turn to the commission.
Is that what you were saying?
:
I call this meeting back to order. Thank you.
With us today by video conference we have, as an individual, Mr. Mel Cappe, professor, School of Public Policy and Governance, University of Toronto, and, from the Quebec Immigration Lawyers Association, Ms. Perla Abou-Jaoudé and Mr. Vincent Desbiens.
We will start with five-minute opening statements from each group. We'll start with Professor Cappe.
Please go ahead, sir, for five minutes.
:
Sure. I made the point that I was not affiliated with any political party and that I was a public servant for 30 years and now teach at the Munk School of Global Affairs and Public Policy at the University of Toronto.
[Translation]
In 2017, I conducted a study for the Department of Public Safety on the lack of review capacity at the Canada Border Services Agency. I recommended closing this gap through the creation of a review panel on the agency, similar to what is proposed in Bill .
[English]
I would like to underscore for the committee a few guiding principles or objectives that members might like to keep in mind while assessing Bill .
The first is to promote the safety and security of Canada and Canadians. The second is to protect and respect the rights of Canadians. The third is to build trust and confidence in the agencies in the portfolio. The fourth is to ensure adequate accountability of these agencies, both for their actions and their management of complaints. As an alternative to what you heard from Mr. Sauvé before, I'd like to see that the responsibility is on the agency and not transferred to the commission. The fifth is to maintain secrecy and privacy. The sixth is to protect the rights of officials who are appropriately exercising their statutory duties, as Mr. Weber pointed out, and the last is to avoid duplication and promote co-operation.
There are also some constraints that I would suggest you have to decide how to balance.
First, the Government of Canada does not have a mandate for all security and safety issues. There are local and provincial police as well. Not all safety and security activities, even at the federal level, fall under the mandate of the Minister of Public Safety.
Building confidence and trust is often in conflict with secrecy. We've seen that recently. Issues are not always agency-specific. You need to be able to follow the thread across agencies and commissions. You must respect the complexity and difficulty of using intelligence as evidence, and good law enforcement requires good service delivery.
Finally, sometimes it's about officer conduct in the exercise of authority and discretion, and sometimes—and here's the one area in which I think Bill could be improved and in which I support the previous three witnesses, Sauvé, Campbell and Weber—it's a problem of systemic review.
An office with too many complaints or a type of complaint going beyond a particular officer may require the commission to initiate a review. Mr. , in the last session, appropriately pointed out that clause 28 allows the commission to initiate reviews, but only on “policy, procedure or guideline[s]”. I think that could be elaborated.
[Translation]
I would encourage you to find the sweet spot between the objectives and constraints.
[English]
The sweet spot is often in the eye of the beholder, and I think this bill does a reasonable job of finding that balance.
I'll be happy to answer any questions you have.
Thank you for inviting us to appear before the committee today.
The Association québécoise des avocats et avocates en droit de l'immigration, or AQAADI, was founded in 1991 and represents more than 500 lawyers in Quebec in the specific field of immigration and refugee protection law.
AQAADI's objectives are, among other things, to ensure that citizenship, refugee protection and immigration laws and policies are drafted and applied in accordance with the principles of fairness, and that they adequately meet the needs of Quebec and Canada while respecting the Constitution, the Canadian Charter of Rights and Freedoms and international treaties ratified by Canada.
First and foremost, we applaud the introduction of Bill . We would like to emphasize the importance of implementing a third-party monitoring system of the Canada Border Services Agency and its employees. In our view, not only is it essential to protect the public, but also for the administration of sound, efficient and transparent justice.
On this last point, it's important to note that the Canada Border Services Agency intervenes in many quasi-judicial proceedings at the Immigration and Refugee Board, which are related to the immigration process, whether it's on detention issues, asylum claims or even removals. However, most of the agency's representatives are not lawyers and don't have to answer to the same regulatory bodies or are subject to the code of ethics for lawyers. Consequently, in the event of misconduct on the part of a CBSA representative, there is not much recourse against them and, for the time being, any action taken is governed solely by the CBSA's internal processes. Our members' experience in the field has shown us that this is not enough to oversee the quality of their work and guarantee the sound administration of justice.
For this reason, we respectfully suggest that the definition of serious incident in section 14.1 of the proposed Canada Border Services Agency Act be amended to include any incident that may interfere with the administration of justice or the proper conduct of a judicial process, and thus not limit the scope of the Act to an incident defined as serious.
By the same token, we believe that the definition of a serious incident should also include any behaviour that would result in a violation of rights and freedoms, including the unfounded detention or the extension of an individual's detention. Although detention does not necessarily result inserious bodily harm or death, it nevertheless causes irreparable harm, since it is a violation of the right to liberty and time spent in detention can never be recovered, not to mention the psychological fallout.
In the same vein, certain provisions of Bill refer to arrest and detention by the Canada Border Services Agency, but there is no clear definition of these terms. For example, subsection 13(2) states that the commission's annual report must include “the number of complaints filed under this act by persons detained by the Agency”. Section 86, however, states that “a person who is arrested or detained by an officer or employee of the Canada Border Services Agency is entitled to be informed as soon as possible of his or her right to make a complaint under Part 2 and of the manner of doing so.”
In our experience, the CBSA has a very restricted definition of arrest or detention by one of its employees. In this respect, with regard to the massive arrival of refugees over the past few years, several asylum seekers were arrested by the RCMP after an irregular crossing of the land border, and within hours were handed over to the CBSA. However, many of them remained at the border under CBSA control for days, and in some cases for more than a week, without being considered arrested or detained. As a result, the process to ensure the legality of their detention under the Immigration and Refugee Protection Act was not initiated for several days.
This is just one example, but it is crucial, in our view, to have a clear definition of what detention and arrest mean so that it is not left to the discretion of the agency, and that the provisions in question apply as soon as an individual is detained or arrested.
Furthermore, in our opinion, the deadline set out in section 33(2) for lodging a complaint is too short. This is specifically based on the fact that current delays in immigration processes exceed one year. On this point, the current average time for an asylum claim to be processed is about two years. Based on our experience with our clients, who are often a vulnerable position, we believe that potential complainants would be reluctant to initiate this type of procedure out of fear that it would negatively affect their chances of success, or even speed up their removal.
Finally, we found that most decisions or opinions of the commission in connection with a complaint, such as the decision not to investigate a complaint as provided for in section 38, or a report on the complaint as described in section 49, or the commission's final report, are disclosed solely to the complainant. We suggest that a copy of any communication should also be disclosed to the complainant's legal representative. Indeed, in many cases, the person concerned may have been removed from Canada, particularly as the complaint process does not provide for a stay of removal. Should this occur, it is highly unlikely that the commission would have the individual's new contact information, whereas it is more likely that the legal representative would.
In the same vein, it would also make sense to allow third parties, organizations, to file complaints.
In the end, we respectfully submit to you that the passage of this bill is crucial, but that appropriate changes must still be made to frame the agency's conduct as well as its policies. This is necessary to ensure public protection and a sound, efficient and transparent administration of justice.
Thank you.
Again, Mr. Chiang, in the last session, pointed out that clause 28 allows for the commission to initiate, but it's on a very focused set of issues, the policies and guidelines.
Imagine if there's a pattern of complaints, that you get a lot of complaints coming from the office in Prince Rupert. The commission may look at that and say, “Well, you know, CBSA, you're missing something. You need to look at that office. Maybe there's a management problem. Do an investigation of that.” You want the commission to be able to initiate those kinds of systemic reviews.
In the previous session, Ms. Campbell from Calgary pointed out systemic racism. It's something that may not occur in one office, but it might be systemically across the agency. You want somebody to be able to draw those inferences.
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I made the point in my opening remarks that the RCMP and the CBSA are not the only law enforcement agencies in the government. Intelligence and security go hand in hand. Therefore, NSIRA becomes an important review commission for CSIS and other agencies, like CSE.
I talked about turning intelligence into evidence. You want to be able to see that work. There's nothing that I see in Bill that prohibits the PCRC from connecting with NSIRA, but neither does it create a gateway.
Out of precision, it would be interesting to think about specifying that those two commissions or agencies would be able to exchange information and that it would be legitimate. I don't think it's necessary. Administratively, it could be worked out. However, it's something worth thinking about.
The other thing is that there are a whole range of other law enforcement agencies. When I was deputy minister of the environment, I had the Canadian wildlife service under me. Those are armed officers who enforce endangered species legislation and such.
Conceivably, you could encompass all of them. I don't think that's a good place to start.
Thank you to the witnesses for being here. I'm going to continue along the same line as Ms. Damoff.
First of all, thank you for your comments, Mr. Desbiens. I imagine you've done a lot of work in the past, and again recently, with migrants at the Canada Border Services Agency's immigration holding centres. On many occasions, you probably would have liked, as an organization, to support a complainant through the complaint process or make a complaint on his or her behalf, as allowed under section 38, which you said you supported.
Mr. Desbiens or Ms. Abou-Jaoudé, can you tell us how this could have helped people who find themselves in such situations?
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Yes, we see that in the decisions that are made.
I'll give you a straightforward example involving an officer. He decided to arrest someone even before their deferral date, on the grounds that he had suspicions. His supervisor simply told us that he agreed with the officer's decision. A formal complaint was made, but nothing further was done. There was no follow‑up.
We agree with what Mr. Weber said about the agency's culture. We can't speak to what happens with officers internally in the course of their work. In detention cases, when we ask the agency to provide us with the evidence or records, it's very hard to get them in advance, as required under the Immigration and Refugee Protection Act.
We try to bring those things to the attention of the people in charge at the agency. Sometimes, the information is well received, and sometimes, it isn't. In our view, if the change within the agency happened at all levels, it would certainly help in every way.
Thank you to the witnesses for their input. It's extremely helpful.
I'm going to start with you, Mr. Cappe. Thank you for your service to the country.
I have two questions for you.
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When you worked at Treasury Board, how did you evaluate the process regarding resources? This is something that has come up systematically, that the resources that are being allocated by the federal government seem to fall woefully short of what is actually required. This is anecdotal, isn't it? The question is, on Treasury Board, how would you have evaluated the appropriateness of a budget? What criteria would you have used?
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Well, Mr. Julian, I'm tempted to tell you that it was magic, but I know that won't suffice.
I think criteria were applied. We looked at the demand and thought about what supply was required. Each of the departments had to then justify the resources. In this case you would expect that CBSA would have gone to the Treasury Board Secretariat, which then would have taken it to the Treasury Board, to ministers, to look at the kinds of requirements and demands there would be.
I said, in answering Mr. Lloyd, that I hoped there would be no complaints, since the agency would adapt and do a better job. I know that's not going to happen; it's not going to get to zero.
You would come to a judgment about how many complaints would require investigation and how much staff would be required to do the investigation. Then you would make sure you had enough people at the border to keep service quality high.
One thing that is required in this is for the agency to establish service standards. You really want to see the agency saying, “Here's how we will respond to your complaints.”
Mr. Sauvé, in the previous panel, talked about how many of the complaints were resolved within 30 days. That shows that the RCMP, at least, has a standard. That would be used when going to the Treasury Board for resources.
Thank you to the witnesses for being with us.
Mr. Cappe, it's nice to see you again after so many years.
Ms. Abou‑Jaoudé, one of the major shortcomings we hope to address is the concern various communities have regarding their lack of recourse and their inability to file a complaint after having a negative experience with a CBSA officer, including feeling discriminated against.
I want to make clear that that's not what happens in the vast majority of cases. When it does happen, however, the idea is to ensure that communities have some recourse. Do you think the bill does that?
What should we do to make sure those on the front lines feel as though they are part of the solution?
Mr. Cappe, I know you have tremendous experience in government, and I wondered what you thought of the fact that it's been 20 years since the recommendation to create an independent body was made to the federal government. Justice O'Connor chaired the very high-profile public inquiry leading to the recommendation to create an independent mechanism to handle complaints from the public. In 2020, the Privacy Commissioner also noted significant failings in the practice of searching passengers' personal electronic devices. He, too, recommended an independent complaint mechanism.
Do you think it took the government too long to act? This is the third attempt. Twice, in the previous two Parliaments, similar legislation was brought forward but, unfortunately, was never prioritized, so it died on the Order Paper.
Do you think actions to restore the public's trust in the RCMP and CBSA are long overdue? Both public safety organizations have received negative media attention in recent years for a variety of reasons. I'm not blaming the officers, because every case is different. Nevertheless, a number of cases were publicized.
Do you think it was important for the government to establish a transparent process to restore the public's trust?