ICLMG has submitted a brief on Bill C-20 (An Act establishing the Public Complaints and Review Commission and amending certain Acts and statutory instruments) to the House of Commons Standing Committee on Public Safety and National Security.

The bill would would reform the existing review and complaints mechanism for the Royal Canadian Mounted Police (RCMP) and create, for the first time ever, a dedicated review and complaints process for the activities of the Canada Border Services Agency (CBSA). It would do so by transforming the existing Civilian Review and Complaints Commission (CRCC), renaming it the Public Complaints and Review Commission (PCRC).

Existing watchdogs and their limitations

Significant change was brought about with the establishment of the National Security and Intelligence Review Agency (NSIRA) in 2019, creating the first overarching body empowered to review Canada’s national security activities. Importantly, this included the national security related activities of the CBSA, subjecting this federal law enforcement agency to any form of independent review for the first time. However, NSIRA was never intended to provide complete coverage of CBSA’s activities, and considerable gaps remain in accountability and review of Canada’s immigration and border policing activities.

Beyond independent review and investigation of public complaints of the CBSA, it has been clear for many years that the review and complaints process for the RCMP has also been in dire need of reform. Long delays in review and investigation completion, often caused by refusal on the part of the RCMP to respond to interim reports, undermined the credibility of the review process; this was further worsened by the RCMP not following through on implementing recommendations, along with the under-resourcing of the Civilian Review and Complaints Commission (CRCC).

The many areas of concern in Bill C-20

Bill C-20 would address many of these concerns, the most crucial being the ongoing and inexcusable absence of an independent review body for the CBSA. However, there remain key areas where the bill continues to fall short and would require amendment at committee. Further, the study of Bill C-20 presents an important opportunity to examine whether the hybrid NSIRA-CRCC review and complaints investigation of the RCMP has proven effective and where there are areas for improvement. Finally, while not included in the legislation, we would urge the committee to also examine the resourcing needed for the newly proposed Public Complaints and Review Commission to carry out its expanded mandate.

Our brief examines the following key points:

• Complaints process
• Referrals of national security complaints and reviews
• Rules mandating the discontinuance of complaints investigations and reviews
• Investigational independence
• Recourse and remedies
• Restrictions on judicial review
• Reporting, transparency and other concerns

You can read our full brief here, where we go into detail on each area. Below is a summary of our recommendations to the committee.

ICLMG’s recommendations

We made the following 29 recommendations for amendments to the committee:

1. Amend ss. 38 and 52 to allow for public-interest third party complaints.
2. Amend s. 33 to allow for the submission of systemic complaints.
3. Amend ss. 52(1)(a) and 38(1)(a) to remove “trivial” from the reasons a complaint could be rejected.
4. Amend s. 33(8)(b) to read, “the Agency or any current CBSA employee” in order for the public to submit complaints to CBSA employees
5. That a definition of “national security” be added to s. 2(1); alternatively, that a working definition be included in a MoU between NSIRA and the new PCRC.
6. That s. 10 be amended to allow the PCRC to make rules related to the process for referring national security related complaints and reviews to NSIRA and that these rules be shared publicly on the PCRC website; alternatively, that Bill C-20 be amended to require the PCRC to enter into a MoU with NSIRA, and that the MoU be shared publicly.
7. That s. 13(2) be amended to require information regarding the number and nature of complaints and reviews that the PCRC has referred to NSIRA be included in the commission’s annual report.
8. That the committee determine the best path to amend the NSIRA Act to allow the review agency to refer complaints back to the PCRC if it determines that, while the complaint is well-founded, that it is not closely related to national security.
9. That Bill C-20 be amended to remove the requirement to terminate complaint investigations that could be dealt with under other processes or Acts, and to instead grant the PCRC discretion to refuse to terminate an investigation where there exists another “comparable, reasonably available and more appropriate” process. Further, the bill should allow for complainants to challenge such a decision within a reasonable amount of time following the communication of the PCRC’s decision.
10. That provisions regarding the rejection or termination of reviews or complaints based on the premise that they “compromise or seriously hinder” the investigation or prosecution of any offence or the administration or enforcement of program legislation be modified to instead allow for an investigation or review to be suspended should such a review or investigation interfere with a legal proceeding in regards to the conduct that is the subject of the complaint. Barring this, that reviews and investigations are only suspended, pending the confirmation that they can be restarted, and that such decisions are made by the PCRC and not by the body that is the subject of the investigation.
11. That the PCRC be made the sole investigating body for the public complaints it accepts regarding the RCMP and the CBSA, and that the government develop and implement a plan for PCRC to take control of all investigations within five years of its creation.
12. That, alternatively, Bill C-20 be amended to allow the Chairperson to initiate reviews of completed complaints investigations that were carried out by the RCMP or the CBSA.
13. Strike s. 84 and amend the bill to explicitly allow the PCRC to allow for a stay of removal or other interim remedies. Alternatively, allow for the filing of an accepted complaint with the PCRC to be used in the filing for a judicial stay of removal.
14. That sections 67 and 68 be amended to allow the PCRC to: a) Initiate, or require the initiation, of a disciplinary process at the conclusion of complaint hearings b) Order certain forms of redress, particularly in the form of halting removals from Canada or allowing re-entry c) Recommend financial redress or awards for founded complaints
15. That s. 28 be amended to allow the PCRC to make binding policy recommendations.
16. That s. 72 be amended to allow for the initiation of a disciplinary process if actions have not been taken to respond to and implement PCRC recommendations.
17. Amend s. 64 to require the sharing of interim reports with complainants and to allow for them to provide feedback.
18. That s. 67(2) be amended to require that a complainant be informed whether or not a disciplinary process was initiated following a recommendation by the PCRC, and why.
19. That s. 67 be amended to include a new section (3) that requires the PCRC and the complainant to be informed of the outcome of any disciplinary process initiated following a recommendation of the PCRC.
20. That s. 68(2) be amended to require a complainant be informed whether or not a disciplinary measure was imposed following a recommendation by the PCRC, and why.
21. That s. 97 also be amended to require the CBSA to report to both the PCRC and the complainant the outcome and any possible follow-up options following a disciplinary procedure.
22. That s. 65 be removed to allow for judicial review.
23. Amend s. 12 and s. 28(7) to allow for the public release of full reports.
24. That s. 13(2) be amended to read “disaggregated demographic-based data”; alternatively, that it be amended to include an enumerated list of demographic categories that could be modified or supplemented by regulation.
25. Remove s. 28(3); or, alternatively, remove 28(3)(a) and modify 28(3)(b) to read “no other review or inquiry has been recently undertaken on substantially the same issue by a federal or provincial entity.”
26. Amend s. 28(4) to read: Before conducting a review on its own initiative, the Commission must give a notice to the Minister as to the nature and topic of the review.
27. That s. 17(2)(b) be amended to read, “privileged information, including information subject to solicitor-client privilege or the professional secrecy of advocates and notaries or to litigation privilege […]”.
28. Amend Bill C-20 to provide a mechanism to adjudicate disputes of information that is “relevant and necessary.”
29. That Bill C-20 be amended in Part 4 to add: Review 93 The Committee of the House of Commons responsible for public safety matters must, a) within five years after the day on which the PCRC Act comes into force commence a comprehensive review of the provisions and operation of this Act, and complete the review within one year; and b) within three months after the day on which the review is completed, submit a report to the House of Commons setting out its findings.

For more details on each recommendations, consult the brief here.