C-20 – Public Complaints and Review Commission Bill

On June 18, 2024, Senator Omidvar spoke to C-20, the Public Complaints and Review Commission Bill. Senator Omidvar is the sponsor of the bill. Watch:

Hon. Ratna Omidvar moved second reading of Bill C-20, An Act establishing the Public Complaints and Review Commission and amending certain Acts and statutory instruments.

Hon. Ratna Omidvar: Honourable senators, I am pleased to speak about Bill C-20, An Act establishing the Public Complaints and Review Commission and amending certain Acts and statutory instruments.

Bill C-20 seeks to enact a new stand-alone statute to establish the public complaints and review commission, or PCRC, as an independent civilian review body for both the Royal Canadian Mounted Police, the RCMP, and the Canada Border Services Agency, the CBSA. For the first time in our history, both law enforcement agencies would fall under scrutiny of one external review body. Combined, the CBSA and the RCMP are the largest government-related agencies in Canada that are not the military. At this point, only the RCMP has an external review body, called the Civilian Review and Complaints Commission, or the CRCC, and this bill seeks to fold in the RCMP review body into a combined review body covering both the CBSA and the RCMP.

Colleagues, even as I make these introductory remarks, I am challenged by the many acronyms which are an alphabet soup — the RCMP, the CBSA, the CRCC, the PCRC. With your indulgence, I’m going to refer to the new commission, which is the Public Complaints and Review Commission, as simply “the new commission,” just to help me with my wording here. Often, I will refer to the CBSA and the RCMP as “the agencies,” although there are moments when I will have to refer to each in particular.

For the better part of my remarks, consider this as a play with three main actors: the commission, the CBSA and the RCMP. Every now and then, the Minister of Public Safety will also make an appearance.

At a broad level, this bill will enhance reporting mechanisms and improve our ability as parliamentarians to hold the agencies and the minister to account with reference to complaints and systemic reviews of the two agencies.

Let us remember, colleagues, that we rely on the CBSA and the RCMP to provide us, our citizens and our residents with protection and security. This legislation will close the gap created by the absence of an external review body for the CBSA and bring Canada up to the high standards set by some of our allies in this field, such as our Five Eyes partners.

Bill C-20 finally responds to a very long-standing yet unfulfilled commitment from the government’s first mandate in 2015 to introduce legislation to create a review body for the CBSA.

Let me take us back to a very dark chapter in our history, the Maher Arar affair. In 2002, Mr. Arar was wrongfully detained during a layover in the United States. He was subsequently deported to Syria, where he endured severe torture and inhumane treatment because, colleagues, erroneous information was provided by the RCMP to U.S. authorities, falsely implicating Mr. Arar in terrorist activities.

The public outcry that followed this horrific ordeal led to the establishment of a comprehensive government inquiry headed by Justice Dennis O’Connor. The inquiry’s findings in 2006 unequivocally exonerated Mr. Arar, laying bare the significant flaws and misconduct in the actions of the RCMP and the CBSA.

One of the most crucial outcomes of this inquiry was recommendations aimed at preventing such tragedies in the future. Foremost among these was the call for a robust, independent oversight mechanism for both agencies. The purpose of these recommendations is clear: to enhance accountability, ensure strict adherence to legal standards and protect the rights of individuals from being violated.

That was in 2006. Almost 10 years later, in 2015, the Standing Committee on Public Safety and National Security recommended that the government establish an independent civilian review and complaints body for all CBSA activities, as the agency had existed since 2003 without such an independent review mechanism.

Former senator Wilfred Moore introduced Bill S-222 and Bill S-205 in 2014 and 2015, respectively, to provide for the appointment of an inspector general of the Canada Border Services Agency. Both bills died on the Order Paper, but as some of you may recall, the government committed to the intent of Bill S-205, which went all the way through the Senate. However, the government did not agree with the proposed model, which involved the appointment of an inspector general.

Subsequently, the government introduced Bill C-98 in 2019. That was followed by Bill C-3 in 2020. I remember Senator Moore very well. He used to sit right over there. He was an outstanding senator. I remind you of Bill S-222 and Bill S-205 as examples of how many good legislative ideas start here in the Senate and are then adopted into government legislation.

Both bills died on the Order Paper. This time, we must ensure we get over the finish line.

Colleagues, we can all recall our interactions with the CBSA and the RCMP. Every time I return to Canada from overseas, I have only the most friendly, polite and efficient interactions with officials of the CBSA. I experience a huge surge of pride every time I see an RCMP officer. They have a stressful job and keep our borders safe. They keep us safe by dealing with difficult issues like terrorism, contraband and smuggling. Their jobs are not easy, and they’re called on to make significant sacrifices in the fulfilment of their duties. Nothing in this bill detracts from that.

However, I am the first to admit that not everyone shares my experience. The CBSA has been scrutinized multiple times for infringing upon individual rights, raising serious concerns about its practices and the need for greater oversight.

One prevalent and persistent issue is the treatment of detainees in the CBSA facilities. Reports and investigations have revealed instances of inadequate medical care, poor living conditions and prolonged detention periods, often without timely legal recourse. Such conditions, colleagues, not only violate basic human rights, but also exacerbate the physical and mental health of detainees.

You might remember one such prominent case: that of Lucia Vega Jimenez. She was an undocumented Mexican woman who died in CBSA custody in 2013. She was detained for overstaying her visa and held in a CBSA detention centre in Vancouver. While awaiting deportation, she took her own life after enduring harsh conditions and inadequate mental health support. This tragic incident sparked outrage and highlighted the severe consequences of the CBSA’s detention policies and practices.

Another significant concern is the arbitrary and discriminatory application of CBSA powers. There have been numerous incidents of racial profiling, in which individuals from certain ethnic, religious and racial backgrounds were disproportionately targeted for searches and detention. This came to light in the Senate Human Rights Committee’s report on Islamophobia, which read:

Ahmad Attia (Member of the Peel Police Services Board and CEO of Incisive Strategy) highlighted that CBSA officers have a great deal of discretionary power with little scrutiny, and are therefore “much more prone to abuse through systemic discrimination but also individual biases, the consequences of which have been devastating to the Muslim community.”

This not only violates the principles of equality and non-discrimination, but also erodes trust in the agency’s ability to enforce laws justly and fairly.

Colleagues, at the heart of this legislation is the human quality of trust. I would be the first to say that certain communities do not trust our law enforcement agencies at this time, and for good reason. There are claims of racism against individuals; indeed, there are claims of systemic racism. A public opinion survey from 2022 found that only one in three Canadians agree that the RCMP treats members of visible minority groups and Indigenous groups fairly. We must restore this trust.

No one is above the law. This includes those who are responsible for law enforcement and border security.

The CBSA and the RCMP are entrusted with broad powers that must not be abused or misused. If and when they are, we expect that any allegation of misconduct will be reviewed and addressed when warranted. Colleagues, it is therefore within our power to maintain, restore and enhance the public’s trust and confidence in our law enforcement agencies, by ensuring that the two largest, most significant law enforcement agencies are required to demonstrate their ongoing commitment to justice and fairness.

The PCRC — the new commission — would replace the existing Civilian Review and Complaints Commission, which is attached to the RCMP, and extend its mandate to the CBSA with increased accountability tools at its disposal.

For example, complainants and eligible third parties, such as lawyers and civil rights groups, would now have access to an external body that could independently initiate, review and investigate Royal Canadian Mounted Police, or RCMP, and Canada Border Services Agency, or CBSA, related complaints with reference to employee conduct or level of service.

In general, the new commission will first refer the cases to the agencies themselves — in this case the RCMP and the CBSA. This would ensure that the deputy heads remain accountable for the actions taken by their employees. If an individual or a third party is not satisfied with how the complaint has been handled, they could apply to the new commission to review it. At the end of the commission’s review, the commission would report its findings and make recommendations to the two deputy heads of the two agencies. Tracking these recommendations and their implementations by the RCMP and the CBSA will allow us to hold these agencies to account.

Further — I think I already mentioned it — third parties are able to also file complaints on behalf of complainants. Vulnerable individuals are sometimes reluctant to file a complaint or may be unable to proceed with the complaints process due to language barriers, distrust of law enforcement or other reasons. In some cases, a complainant could be someone who is already in detention. This is where the inclusion of third parties in the complaints process provides an avenue for greater representation from individuals who may be reluctant or unable to complete the complaints process.

With this change in the law, the complaints process becomes accessible to a far greater number of individuals who interact with the RCMP and the CBSA, including those in immigration detention centres, provincial facilities or any future designated immigrant stations, as proposed in Bill C-69.

There is also a second kind of review that the new commission can undertake as part of its mandate, and that is the conduct of specified activity reviews, or SARs, on the commission’s own initiative, at the request of a third party or at the request of the Minister of Public Safety. These are systemic investigations. They would allow the commission to identify systemic issues and develop recommendations around policies, procedures or guidelines relating to the operations of the CBSA and the RCMP beyond just the one case — so the two cases. It’s a systems-wide thing. These investigations provide the new commission with the tools to identify broader concerns in Canadian law enforcement and to contribute to solutions to address them.

For instance, if the commission notes a trend in multiple individual complaints that highlight the excessive use of force and poor conditions in detention centres managed by the CBSA, the new commission could initiate a specified activity review. The new commission could initiate such an activity to examine all related complaints collectively rather than addressing them one by one. Through this review, the new commission might uncover systemic problems, such as inadequate funding, gaps in training for officers, insufficient medical care for detainees or non-compliance with international human rights standards. Based on these findings, the public complaints and review commission, or PCRC, could then develop comprehensive recommendations to reform policies, procedures and guidelines, improve the treatment of detainees and prevent future misconduct across the board.

Colleagues, because the bill has been through two previous iterations and extensive study at the House, it comes to us much stronger and provides the commission with enhanced tools to fulfill its complaint and review procedure.

First, it establishes the commission under stand-alone legislation to reinforce its independence from both agencies that it reviews. The current oversight commission that is attached to the RCMP, which will be absorbed into the new commission, is embedded within the statutes governing the RCMP and is therefore not completely independent. Therefore, this is a move to ensure greater independence.

Second — this is really important — the bill creates codified timelines for the heads of the two agencies to respond to interim reports, reviews and recommendations, leading to increased accountability. For example, this would help deliver on some of the recommendations by the Mass Casualty Commission in Nova Scotia with regard to creating more timely and transparent reporting of federal law enforcement agencies.

Third, the deputy heads of the two agencies would be required to submit an annual report to the Minister of Public Safety to inform him or her of actions they have taken in response to the reports and recommendations made to them by the commission. These annual reports will be tabled in both houses, allowing for parliamentary scrutiny, which will further strengthen the accountability process.

Fourth, in order to identify and contribute to efforts to address systemic issues around vulnerable populations, the new commission, in consultation with the two agencies, would be required to collect disaggregated, demographic and race-based data on complainants where such information has been voluntarily provided.

Finally, this bill would seek to improve law enforcement’s interaction with the public by mandating that the commission conduct outreach and education activities, including with Indigenous and/or racialized communities, raising their awareness of their right to file a complaint.

I’d like to assure you that while this commission is independent, it does not act in isolation. It would maintain a collaborative relationship with the National Security and Intelligence Review Agency to ensure that matters related to national security-related complaints are handled with requisite expertise and confidentiality.

Further, the bill will create a statutory framework in the Canada Border Services Agency Act to govern the agency’s response to serious incidents, which are now governed only by internal policy. This will require the CBSA to conduct internal investigations into alleged serious incidents and inform the police in the jurisdiction, the public and the PCRC when these incidents occur.

Suppose an incident occurs at a border checkpoint and someone is seriously hurt as a result, and the CBSA officer is alleged to have used excessive force resulting in a serious injury to a traveller. Under the new statutory framework, the CBSA would be required to launch an internal investigation into the incident as soon as possible. This process would be governed by standardized procedures outlined in the act, ensuring consistency and thoroughness in the investigation.

Additionally, the CBSA would have to notify both the police of the jurisdiction where the act occurred and the new commission about the incident, and the police could then determine if any criminal investigation is warranted. The commission would have the role of examining whether the investigation done by the CBSA is impartial. If it is not impartial, then the commission can launch its own review.

The bill as you see it today has been enhanced through its legislative process. Following widespread consultations with individuals and communities most impacted by the work of the RCMP and the CBSA, amendments were made in the House to strengthen the process by increasing accountability and transparency. This includes an amendment to provide the commissioner of the PCRC with increased autonomy to conduct systemic investigations and thereby be in a better position to target fundamental concerns about law enforcement, including systemic racism.

The commission will also be able to receive, review and investigate reports on complaints about RCMP reservists, which were not previously covered in Bill C-20. This amendment will avoid potential confusion about who can be the subject of a complaint and who can’t, because, in many instances, the public can’t distinguish between a member of the RCMP and a reservist.

A “due regard” clause was also included to respond to recommendations around ensuring diversity among the members of the new PCRC. This clause would require the Minister of Public Safety to consider the diversity of Canadian society when recommending Governor-in-Council appointments to the commission.

Further, the commission would now be required to collect and publish demographic and race-based data on complainants in an annual report to the Minister of Public Safety, thus allowing parliamentarians to better detect systemic discrimination and hold the minister to account.

Colleagues, Bill C-20 is more than just reviewing the actions of the CBSA and the RCMP; it is about law enforcement reform and reaffirming this country’s commitment to principles of justice, equality and the rule of law. The creation of the public complaints and review commission would mark a significant advancement in our continuous pursuit of a fair and just society.

Before I conclude my remarks — and I think this is the longest speech I have ever made — I’d like to thank all of those who have participated throughout the development of this bill and made key recommendations that have helped make it what it is today. I would like to thank, in particular, the many civil society organizations and lawyers, particularly immigration lawyers, who have contributed to improving this bill. All of them to whom I have spoken support independent oversight of these institutions. They have been calling for this for many years, and this is a crucial step to ensuring accountability and transparency.

Finally, colleagues, I would like to point out that this bill passed unanimously in the other place at third reading. As we know, that is not a usual situation, but it does happen from time to time. This time, it did happen.

With that, colleagues, I urge you to join me in supporting this bill and getting it to committee for study in the fall.

Thank you.