Bill C-98 – Independent review of the Canada Border Services Agency

Backgrounder

The Canada Border Services Agency (CBSA) ensures Canada's security and prosperity by facilitating and overseeing international travel and trade across Canada's border. On a daily basis, CBSA officers interact with thousands of Canadians and visitors to Canada at airports, land border crossings, ports, and other locations. Ensuring the free flow of legitimate people and goods across our border, while protecting Canadians, requires CBSA officers to have the power to arrest, detain, search, seize, as well as the authority to use reasonable force when required. At the border, officers have the power to stop travelers for questioning, take breath and blood samples, and search, detain and arrest non-citizens without a warrant. Currently, complaints about conduct and the service provided by CBSA officers are handled internally. If an individual is dissatisfied with the results of an internal CBSA investigation, there is currently no mechanism for the public to request an independent review of these complaints.

The Government recognizes that robust accountability mechanisms can help ensure that the public trusts Canada’s public safety institutions.  Bill C-98 proposes to add an independent review and complaints function overseeing the CBSA to the Civilian Review and Complaints Commission (CRCC), which currently provides that function for the Royal Canadian Mounted Police (RCMP). To reflect these new responsibilities, the CRCC would be renamed the Public Complaints and Review Commission (PCRC).

Bill C-98 would also legislate a framework for the handling of serious incidents involving CBSA personnel. This includes giving the PCRC the responsibility to track and publically report on serious incidents (e.g. death, serious injury, Criminal Code violations) involving the CBSA.

Review Function

The PCRC would have the ability to review, on its own initiative or at the request of the Minister, any non-national security activity of the CBSA. PCRC reports will include findings and recommendations on the:

  • adequacy, appropriateness, sufficiency or clarity of CBSA policies, procedures and guidelines
  • CBSA’s compliance with the law and ministerial directions
  • reasonableness and necessity of the CBSA’s use of its powers

The PCRC would not have the authority to review, uphold, amend or overturn enforcement, trade or national security decisions made by the CBSA.

Complaints function

The PCRC would be able to receive and investigate complaints from the public concerning the level of service provided by the CBSA as well as the conduct of CBSA officials. It would also be able to refer complaints to the CBSA for initial investigation. If an individual were not satisfied with the CBSA’s handling of a complaint, they could ask the PCRC to review it. At the conclusion of a PCRC investigation, the review body would be able to report on its findings and make recommendations as it sees fit. The President of the CBSA would be required to respond, in writing, to the PCRC’s findings and recommendations.

Detention-related complaints

The PCRC would accept complaints about the conduct and the service provided by CBSA employees from detainees held in CBSA facilities.  These could include complaints related to treatment and conditions in detention. To ensure that detainees held on behalf of CBSA in provincial/territorial (P/T) facilities have access to a similar mechanism, Bill C-98 would include new provisions which specify that the CBSA is only permitted to enter into detention agreements with P/T authorities if the P/T has an independent complaints mechanism in place (except in exceptional and temporary circumstances). CBSA would be required to transfer the individual to a jurisdiction that has an existing detention agreement if the situation requires it.

Relationship with the National Security and Intelligence Review Agency (NSIRA)

As proposed in Bill C-59, the NSIRA would be responsible for complaints and reviews relating to national security, including those relating to the RCMP and CBSA.  Provisions in Bill C-98 would facilitate information-sharing and cooperation between the PCRC and NSIRA.

Relationship between PCRC and other existing bodies

The PCRC would not consider complaints that could be dealt with by other organizations such as the Canadian Human Rights Commission (CHRC), the Office of the Commissioner of Official Languages, or the Office of the Privacy Commissioner of Canada. If the PCRC were to receive these types of complaints, it would refer the complainants to the appropriate body. However, since the CHRC could only receive complaints from individuals lawfully in Canada, the PCRC would accept complaints about the conduct and the service provided by CBSA employees from foreign nationals that involve allegations of discrimination.

Access to information

In performing its review and complaints function, the PCRC would have access to any information that the CBSA possesses, with certain narrow exceptions such as cabinet confidences and sensitive commercial information.


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