Proceedings of the Standing Senate Committee on
National Security and Defence
Issue No. 4, Evidence - Meeting of May 16, 2016
OTTAWA, Monday, May 16, 2016
The Standing Senate Committee on National Security and Defence met this day at 1 p.m. for the consideration of a draft agenda (future business) and Bill S-205, An Act to amend the Canada Border Services Agency Act (Inspector General of the Canada Border Services Agency) and to make consequential amendments to other Acts.
Senator Daniel Lang (Chair) in the chair.
The Chair: Colleagues, welcome to the Standing Senate Committee on National Security and Defence for Monday, May 16, 2016.
Before we begin, I would like to introduce the people around the table. My name is Daniel Lang, senator for Yukon. On my immediate left is the clerk of the committee, Adam Thompson. I would invite each senator to introduce themselves and state the region they represent.
Senator Kenny: Colin Kenny, Ontario.
[Translation]
Senator Dagenais: Jean-Guy Dagenais from Quebec.
[English]
Senator Day: Joseph Day, Saint John-Kennebecasis, New Brunswick.
Senator Oh: Senator Oh, Ontario.
[Translation]
Senator Carignan: Senator Claude Carignan from Quebec.
[English]
Senator White: Vernon White, Ontario.
Senator Jaffer: Mobina Jaffer, British Columbia.
The Chair: Colleagues, today we will be meeting for approximately four hours. The first item on our agenda is to elect a new deputy chair for the committee.
On behalf of all members, I would like to thank Senator Day for his leadership as deputy chair of the committee, and I am very pleased to see that he's still staying on the committee and will be continuing as Chair of the Subcommittee on Veterans Affairs.
Once again, thank you, Senator Day.
At this time I would like to invite Senator Dagenais to propose a name for the deputy chair.
[Translation]
Senator Dagenais: Mr. Chair, I'd like to nominate Senator Jaffer as vice-chair.
[English]
The Chair: Are there any more nominations? There being no more nominations, I want to welcome Senator Jaffer as deputy chair, and I want to say I'm looking forward to working with you in the future here. Senator Jaffer is elected.
Colleagues, today the Senate has been asked to consider Bill S-205, a private member's bill proposed by Senator Moore of Nova Scotia, Bill S-205, An Act to amend the Canada Border Services Agency Act (Inspector General of the Canada Border Services Agency) and to make consequential amendments to other Acts.
Senator Moore is here today to speak to his bill. A special welcome to Senator Moore, who has done a lot of work on this issue. We have one hour for this panel. Please begin your address, Senator Moore.
Hon. Wilfred P. Moore, sponsor of the bill: Thank you. Honourable colleagues, good afternoon. Thank you for making time to study Bill S-205, which if passed would create the position of Inspector General of the Canada Border Services Agency.
It has been 15 years since the events of September 11, 2001, which changed our world forever. We have witnessed an increased level of worldwide security which is unprecedented in our history. It is unfortunate that we see the same heinous acts being perpetrated against innocent civilians across the world, as the members of this committee well know, and we must remain vigilant.
Bill S-205 is not about reducing the powers of the Canada Border Services Agency, although some may believe that that should be done. This bill is about accountability and balance, no more and no less.
There are three major components of the bill: the complaints process, the investigative role of the inspector general, and the process for remedies.
Under the complaints process, any person may make a complaint with respect to any act or thing done by the CBSA, its employees or agents. The inspector general, however, reserves the right to refuse to investigate further if he or she feels the investigation is unnecessary, the complaint frivolous or made in bad faith, or if the complaint falls outside the authority of the inspector general.
The investigation itself will provide the opportunity for the complainant and the CBSA to make representations to the inspector general and to provide evidence. If the inspector general finds a complaint to be well-founded, he or she shall provide the Minister of Public Safety and the President of CBSA with a report containing findings and recommendations, and a request that within a specified time frame, any actions or proposals which have or have not been taken in response to the report's recommendations.
The second major aspect of Bill S-205 is the reporting component of the bill. Under this legislation, the inspector general would, within three months after the end of the fiscal year, submit a report to the Minister of Public Safety of the inspector general's activities during that year. The inspector general may also prepare and submit to the Minister of Public Safety a special report, the content of which concerns any matter which the inspector general deems urgent enough to warrant submission to the minister before the annual report.
In turn, the Minister of Public Safety is required to table either the annual report or such a special report before each house of Parliament within 15 days of receiving the report. The reports mentioned may also merely point out organizational challenges for CBSA. We tend to get caught up in the complaints and remedies issue, but we keep in mind here that the inspector general may make suggestions where he or she feels the CBSA is having difficulty fulfilling its mandate.
The third major component of this bill concerns remedies. According to this legislation, anyone who made a complaint to the inspector general may apply to the Federal Court for a remedy. The complainant may apply to the court within 60 days of the date on which the investigation results are reported, or the date on which the complainant has been informed that the Inspector General has refused to investigate the complaint.
Furthermore, if the court concludes the complaint is well-founded, the court may grant any remedy it considers appropriate and just. The inspector general also reserves a right to apply to the court for remedy for the complainant, if the complainant consents as well as appears before the court on behalf of any person who has applied for a remedy.
Since 9/11, we have witnessed an increase in the powers of our security agencies, yet while these powers have been growing, the checks and balances have not. We find ourselves now in a situation where we have lagged so far behind on oversight that Canadians are beginning to question just who is protecting their rights to privacy, for example.
Bill S-205 is a response to the call for oversight of CBSA, which were first heard with the O'Connor report 10 years ago. CBSA is a unique agency with a tremendous amount of power, which at the moment has no independent review mechanism. An agency with such a wide mandate and powers should not be handling complaints and investigations internally. That is not acceptable in a democracy such as Canada.
I submit it is time to provide the oversight required to give Canadians more faith in our security agencies, such as CBSA.
Thank you.
The Chair: Thank you very much, senator. I want to make this comment just for the viewers' information from a historical point of view. You referred to the O'Connor report and some of the history. I want to refer to our Senate report entitled Vigilance, Accountability and Security at Canada's Borders. That was a report that our committee approved and brought forward to the Senate in June of 2015.
Two of those recommendations were that the government establish an independent review and complaints body for all Canada Border Service Agency, and also establish an oversight body.
It is important to realize it is fortuitous for you to be here to bring forward a private member's bill so that we can at least discuss the issue from a more relevant point of view, from the point of view of how it would work.
Before I go to members for questions, could you expand on what compelled you to bring the private member's bill forward for the purposes of this debate?
Senator Moore: I'm happy to do that, chair, but I wanted to pick up on your comments with regard to the report of the committee. It should be noted for the record that you did report to the Senate and the Senate adopted it completely, those two important recommendations. It wasn't just the committee, but the Senate of the country adopted and agreed with those recommendations. It is very important for the benefit of Canadians to know that.
With regard to the motivation, chair, I don't know if committee members are familiar with the case of Lucia Vega Jimenez. This lady came to Canada from Mexico. She had border issues, was put in a jail — I didn't know that CBSA operated jails in Canada — was denied legal advice, was denied medical help, was quite despondent and took her own life in a jail cell in Vancouver.
I can't believe that sort of thing happened in Canada, that the appropriate authorities didn't take the responsibilities to make sure this person and others — there were a couple other deaths last week, another one the other day in Alberta. We're not doing something right here. People may have immigration problems, but they have a right to life, and we should be respecting that and trying to make sure that they get every opportunity to explain the situation in a fair consideration.
That lady, I don't want her death to go without impact, chair, and members of the committee.
[Translation]
Senator Dagenais: Thank you for your presentation, Senator Moore. Could you explain to us in more detail the advantages of creating a position to monitor and oversee the activities of the Canada Border Services Agency? In other words, what activities would that person have to report on?
I also have a second question, Mr. Chair.
[English]
Senator Moore: Thank you for the question, senator. The inspector general would hear complaints from Canadians or people who are visiting, who are in the country, and would hear those cases, would decide whether or not they were frivolous or if they were important enough cases, and provide those individuals with an independent hearing outside of CBSA.
Currently any such complaints are done internally. I don't think, in terms of transparency and accountability, that that is the way we should continue to go.
The process would be there, and reports would be made following hearings. If it was a special item, as I mentioned in my remarks, it would be dealt with immediately, and if it's a routine one, I guess they call it that, and there were a number of them during the year, that would be part of the annual report. In all cases, the minister and the President of the CBSA would be involved.
[Translation]
Senator Dagenais: Why do you think it is important for the House of Commons and the Senate to approve the appointment of an inspector general of the Canada Border Services Agency and for the appointment to be made by both chambers?
[English]
Senator Moore: I think it is extremely important, senator. We are talking about a system which is not working now. I am suggesting to the committee that the proposed legislation would provide integrity in our system, faith for Canadians or others who had a complaint, that their complaint would be heard fully, fair consideration, before an independent hearer, the inspector general. We don't have that now.
I think to have that person appointed subject to approval of both houses is critical so the Canadian public will know that its elected and appointed representatives have given due consideration, and that they're in there looking after the interests of Canadians.
Senator White: Thank you for being here today, Senator Moore. When I look at proposed section 15.21 that talks about the ability for persons who file a complaint to take it to the Federal Court, is that modelled after any other agencies that have the same capacity or capability?
Senator Moore: When we were putting this together, in connection with legal counsel as well as in the Senate, the system that most fit us was the one in the U.K. We were trying to provide the tradition of oversight that was established there and has worked.
Senator White: There is nothing in Canada; is that correct, senator?
Senator Moore: Not that I'm aware of.
Senator White: The second question is going to talk about what is not in the bill, if I may. The CBSA enforcement officers are limited as to the scope of their activity. As an example, somebody who speeds through a location in a vehicle, they are obligated by statute to contact the RCMP or local police agency.
Was any consideration given to expanding the role of the Civilian Review and Complaints Commission for the RCMP to eat up the CBSA since a lot of the investigations will probably include both or, within the same example, the Civilian Review and Complaints Commission to also have the inspector general role? From an expediency perspective as well, they would be up and running as soon as the bill was passed.
Senator Moore: We looked at that, senator.
Senator White: You did? Okay.
Senator Moore: It is important that there be an independent freestanding office. The RCMP has its own issues, and I think the CBSA issues are different. The force is growing, and I think it demands its own review process and a person to do that.
Senator White: I appreciate that. So you know, senator, I fully support the need and the desire for everyone here to see a shift from where we have been the last decade to where we're going.
Coming into force under clause 12, would the senator accept a friendly amendment if we dated that with 6 or 12 months following passage of the bill in the house?
Senator Moore: I thought about that —
Senator White: I hate putting people's feet to the fire.
Senator Moore: No, this is good. I don't mind that, senator. I didn't want to have a time frame set in the bill now so that somebody would say, "Well, you are causing Her Majesty to spend money.'' I thought leaving that open for the House of Commons to establish that date, senator, would have the royal rack click in. That was the thinking behind it, nothing beyond that.
Senator White: I had never thought about the money bill. Thank you very much.
The Chair: Could I follow up on that a bit? Clause 12(2) states very clearly:
No order may be made under subsection (1) unless the appropriation of moneys for the purposes of this Act has been recommended by the Governor General . . . .
So I thought you had covered that off by that section so that it is very clear we're not asking for appropriations; they have to approve the appropriations.
Senator Moore: Yes, chair.
The Chair: Would that not cover to a good extent the question that was put by Senator White?
Senator Moore: I think it would. I wanted to clarify my thinking putting this together, chair. I anticipated that question would come up, but, yes, I agree.
The Chair: A friendly amendment might not be out of order?
Senator Moore: I'm open to the wisdom of the committee. I think this is an important bill, and if we can polish it up, I'm for that.
Senator Jaffer: I want to thank you for giving voices to the voiceless. You brought up this Jimenez case. That's not just a black mark on CBSA but on Canadians. People from British Columbia very much remember what happened. A vulnerable woman, a woman running from violence, and this is how we treated her. It is a very good way to honour her. I thank you for that.
I have a number of questions. I will ask you a few now and a few maybe later. My main question is when studying this bill, the thought that has come to me is we are all aware that there is going to be some oversight by the government, and of course you haven't seen that bill, so you can't comment on that.
Depending on what is in that bill, this may become part of that oversight provision. We don't know, though. We don't know what is in that other bill. So we will just have to see.
Senator Moore: Do you want me to comment on that?
Senator Jaffer: Yes, please.
Senator Moore: Thank you, senator. As we know, the government is considering the establishment of a parliamentary committee to oversee our departments and agencies with national security responsibilities, and I expect CBSA may well be one of them.
I have had discussions with the parliamentary secretary to the minister, and I don't know that the bill that may be forthcoming will get that far, if I can use it, down into the weeds, to provide an appeal process for Canadians and other individuals who are caught up in our system.
I don't want to presume that it's going to, and I would like us to proceed in any event. I know the minister has indicated he's going to appear, I think this month, is that correct?
Senator Jaffer: Next week.
The Chair: Next week, yes.
Senator Moore: I guess we will all sit and listen and hear what he has to say, but I don't know that what is being proposed will provide this kind of complaint opportunity, whether it is for CBSA or some other federal department; it might be under the umbrella of that new bill. I am sticking to this and trying to advocate that we proceed with this.
Senator Jaffer: One of the things I really like in this bill is that you have taken it away from the partisanship of appointments in asking that the inspector general be appointed with consultation from every recognized party, rather than just the government. I like that part of the bill because this is such an important issue, as others are, but this one especially. I wanted to have you expand on your thinking.
Senator Moore: That goes back to what we said earlier. The chair said why is it important. It is important that Canadians know that this is an officer, whoever he or she may be, that they can go to and know that that person has been put in place by all of us, and there's a huge onus and responsibility on that person to conduct himself or herself properly and to give Canadians a fair look at whatever the valid complaint might be. It goes to the integrity of the system and who we are as a people.
[Translation]
Senator Carignan: I am trying to understand the system, Senator Moore. I understand that, under paragraph 15.5(1) (a), the mandate of the inspector general is to monitor and report on the activities of the agency in carrying out its mandate, which may include making observations and recommendations concerning the procedures and performance of the agency. I follow you up to that point. What I do not understand is your proposal that legal remedy be sought through the Federal Court. What do we want the Federal Court to monitor? What do we want it to review and on what basis?
[English]
Senator Moore: Thank you. The observations within the mandate, let's look at a current situation. If the inspector general was in place today, we have got a situation on the Windsor-Detroit Bridge, we have people trying to get into Canada from the U.S., we have booths that are not manned, we have booths being shut down when the shift changes, even though there are people lined up to get in. If that person was in office today, I would think that he or she would become aware of that, would be able to go to the appropriate authorities within CBSA within government and say, look, we need manpower, we need help, we need to make sure that when a shift comes we don't walk away and turn the red light on and people are sitting there wondering what happened. People who are in the NEXUS lane should be able to get to the NEXUS lane. He or she should be able to look at those operational things and help provide some constructive, positive input, working with the president and the minister.
[Translation]
Senator Carignan: I understand all that, but what would the court be doing? A complaint cannot be filed with the court every time the inspector finds that the administrative procedure was not followed properly. Are we going to ask the Federal Court to call people to order?
[Translation]
Senator Moore: I am not suggesting every time, no. What section are you on?
[Translation]
Senator Carignan: I do not see any limits. Should there not be a privative clause to indicate the specific cases in which legal remedy can be sought and to limit the ability to seek legal remedy to cases in which the CBSA's decision was clearly unreasonable or cases that raise obvious legal issues that must be dealt with? From what I understand, right now, the court will have to review all of the inspectors' decisions and observations.
[English]
Senator Moore: No, I'm not suggesting that. Maybe that section has to be tidied up, but I'm expecting that the inspector general will make decisions based on the evidence that he or she gets from the individual and from the CBSA, and they will make a finding on the complaint.
If it's not what the citizen wants, he or she could go to the Federal Court. If they didn't want to, for whatever reason, the inspector general could carry that case for them.
If that has to be tightened up, I hear you.
[Translation]
Senator Carignan: I think so. In your presentation, you said that we should be more transparent, but in subclause 15.8(1) of the English version of the bill, which pertains to investigations of complaints by the inspector general, it reads:
[English]
. . . shall be conducted in private.
[Translation]
However, in English, the bill says that investigations conducted by the inspector general under this act are secret. Secret investigations require a much higher level of confidentiality than private investigations. What is your intention?
[English]
Senator Moore: I think "in private'' is what it's meant to be.
[Translation]
Senator Carignan: You do not want any public hearings, but you are not necessarily proposing that they be secret.
[English]
Senator Moore: Correct. So that the privacy of the complainant is protected, but what you say is correct. That's a nuance of the languages, which can be adjusted.
The Chair: That should be noted, senator, for when we deliberate sections of the bill, obviously.
Senator Oh: Senator Moore, thank you for taking on this important issue on the bill.
My question regards proposed section 15.20. Given the important work of the office of the inspector general for CBSA, the inspector general will be required to perform within paramilitary organizations. Can you explain why the penalty for obstruction of the inspector general in proposed section 15.20(2) is so weak and the fine is only $1,000? Can you elaborate on why the penalty was picked and whether you would be willing to increase it?
Senator Moore: Thank you, senator, for the question. I sort of thought that might raise some attention.
When you're drafting this, how do you decide what the deterrent should be? If in the wisdom of the committee it should be higher and there's agreement of the committee as to what it should be, I'm absolutely open to an amendment to that effect.
We had to put something down to let people know that we take this seriously, and that if somebody does obstruct, they will be contacted and will be subject to a fine.
If the fine should be higher, I'm agreeable to that, senator.
Senator Oh: Today, traffic offence fines are more than $1,000.
Senator Moore: I'm with you.
Senator Oh: Can you explain the process for the inspector general to bring forward such a complaint or charge for obstruction? The bill does not specify how much an issue like obstruction can be addressed.
Senator Moore: Could you repeat the first part again? I want to make sure I understand what you're asking.
Senator Oh: Can you explain the process for the inspector general to bring forward such a complaint or charge for obstruction?
Senator Moore: As I mentioned, it's important that people who are involved in this process take it seriously, that the issues we're dealing with, rights of individuals, they are entitled to a full and fair consideration of their complaint. That means the production of all data or materials that the inspector general may require in order to complete their job.
It's a very serious thing. When you talk about the Jimenez case or others, they scream out for attention and a system put in place where they get a fair and timely hearing.
Senator Kenny: Senator Moore, it's really ambitious to come forward with a substantive bill of this size and on this subject. You are to be congratulated. I can't imagine how many hours you've put into this.
Did you compare this position, when you came forward with the name "inspector general,'' with the inspector general's role that the original version of the Canadian Security Intelligence Service Act had? The titles would be the same, but did you compare what they did?
Senator Moore: No, I did not.
Senator Kenny: I'm asking the question because the inspector general in CSIS' role is one that is sort of similar to a canary in a coal mine. It's designed to give the minister a heads-up if the officials are not being transparent with him. It was designed to be balanced off by SIRC, where they would be doing a number of things that you have the inspector general doing here.
It seems to me that the job you have for this inspector general over an intelligence-related organization and what Parliament decided was appropriate for SIRC have the same title but quite different jobs, or at least at first blush it appears to me that's the case.
Senator Moore: We weren't modelling it after CSIS. In any event, I'd expect in both of those mandates there are certain fundamental tasks and rights that are adherent to it, but we didn't sit down and lift that out of that act.
Senator Kenny: Okay.
Senator Moore: It's nice to hear that people are thinking the same way to protect the rights of individuals.
Senator Kenny: One job is a private job, and this job is a very public job.
Senator Moore: Correct.
Senator Kenny: The next question I wanted to ask has to do with recognized parties. I can see how that makes sense in the House of Commons. In the Senate it may be a different matter given that we have a large number of people who aren't in any party, and that number is likely to grow. Have you given that some thought?
Senator Moore: A little bit as I sit there in the Senate and watch things evolve, but I'm not hung up on that. I appeared last week on another bill before a committee of independent senators, and the question is no different there than it is here. It's all about making the country better, solid motivation and trying to do the best thing, so I'm not too concerned about the partisanship when it comes to a bill like this being considered in the Senate.
Senator Kenny: My question was, were they going to be excluded? Senator Jaffer complimented on you having all recognized parties consulted on the appointment. The recognized parties wouldn't apply to a third of the Senate as it stands now.
Senator Moore: That's a good question. What do I say to that?
There's no doubt in my mind that the Rules of the Senate are going to have to change from the way the Rules are now written with regard to how you get into caucus, the membership, the makeup, the recognized party and also the funding of various offices in the Senate. In consideration of the reality that you mentioned, and as we move through even to the end of this calendar year, you're probably going to see more independent senators not aligned with a party in the chamber — more than we have today and more, perhaps, than members sitting there like me, connected with a political party. We'll have to cross that bridge when we come to it, I guess.
The Chair: Senator, if I could add to this, I think Senator Kenny raises an interesting point. This is something we might consider later, but it may be an amendment to the bill to "recognized parties'' or "recognized Senate caucuses.'' At the end of the day, there's going to have to be some discipline within the confines of the Senate, and it will probably have to be by way of caucuses where decisions can be made. That might, at least in part, meet the point raised by Senator Kenny.
Senator Moore: That's a practical and good point, chair. What the structure will be — it may be regional; who knows?
Senator Day: On this speculation as to the future of the Senate, Mr. Chairman, I don't think we should recommend amendments to this bill at this time. There's no reason to assume that all independents are going to caucus together because "caucus'' implies giving up some of your independence for the group. If they're truly independent, which they appear to be, I don't think we can assume that they're going to be caucusing.
I wouldn't recommend that change, but I do point out, in section 15.2, resolutions of the Senate and the House of Commons are also contemplated. Senator Jaffer made reference to the various groups consulted and how the process was going to take place. It seems that's your answer to that, namely that all members of the Senate would have a chance to participate in a debate on the resolution and the voting on any resolution.
Are you with me on that, senator?
Senator Moore: Yes, absolutely. That's the current situation, and that's the bill that we're looking at.
Senator Day: Perfect. Irrespective of what particular group or non-group, every senator has an opportunity to participate.
Senator Moore: Correct.
Senator Day: My question is primarily towards what can be described as the oversight or monitoring role aspect as opposed to the complaint process that you're giving to this group.
Although we haven't heard from the minister yet, and we haven't seen any legislation, I believe the articles I've read are that legislation will be coming in proposed form before the summer. I took it from the earlier discussion that you believed that to be more the monitoring aspect as opposed to the complaint aspect of your legislation?
Senator Moore: Yes, senator.
Senator Day: So the monitoring aspect may or may not be by a combined group of House of Commons and senators, but it's still a monitoring function.
Senator Moore: Yes.
Senator Day: You've combined them both here. One aspect of that can be easily taken off if it's a conflict of or duplicate of one aspect of the proposed legislation coming down.
I would like to ask you about what can be disclosed in the monitoring process. From reading your legislation, I believe you contemplate that the inspector general would be a Privy Councillor and would be obliged to follow the non-disclosure rules of the Privy Council.
Senator Moore: I didn't think of that office being a Privy Council councillor. I thought of it more as an officer of Parliament, like the Auditor General or the information officer, the Privacy Commissioner. I think those people are all immune from legal suit. That's a valid point, I guess, but I didn't think of that as being the nature of the office, senator.
Senator Day: Would the inspector general have access to information that Privy Councillors have access to?
Senator Moore: If the inspector general is monitoring the operations of the agency, he or she might see some opportunities for improvement and make a suggestion. The inspector general would make those suggestions to the minister and I expect also to the president of the agency. I didn't think that he or she would go to the minister and seek out information that was privy to the cabinet.
Senator Day: I guess I'm having a bit of difficulty understanding proposed section 15.17 and what information the inspector general may have access to. Then we go on and say "but limited to'' — page 8 of your proposed bill talks about solicitor-client privilege and confidence of the Privy Council in Canada.
If you go on to subsection (4), because this whole section is subject to subsections (3) and (4), it says that the inspector general may disclose if the inspector general feels that he or she must do so in order to explain the situation. That means that solicitor-client privilege can be disclosed. I'm not sure of the Privy Council aspect. The concern is, isn't that getting us around certain safeguards that have been built up over many years and many decades? We're saying that notwithstanding all of that, they can disclose it if they feel, by applying their own tests, it's okay to do that?
Senator Moore: Good point, senator. "Solicitor-client'' bothers me as a solicitor.
Senator Day: Yes; and me.
Senator Moore: The courts have recently ruled on that, that that's to be protected. It was in connection with the laundering of money cases before the Supreme Court last year. That should be tightened up, no question. Thank you.
Senator Day: Thank you.
The Chair: Colleagues, we have approximately 15 minutes. I'd ask everyone to be concise in their questions, and I would ask the witness to be concise in his response so that we can get through the list here. We have four senators with questions.
Senator Jaffer: Senator Moore, I want to refer you to proposed section 15.6(1) of your bill. It's the definition of "trivial, frivolous, vexatious or made in bad faith.'' I don't know how it will be interpreted, but it could be interpreted very broadly to allow the inspector general to refuse some valid cases.
First of all, I'd like to hear from you why you thought it was necessary to put that in the bill. Of course, there is no definition — there can't be; I'm not faulting you — but from one inspector general to another, different inspectors general could decide what is frivolous.
The Chair: Which section is that?
Senator Moore: It's section 15.6(5)(a).
In putting it in there, I guess we wanted to make it clear that this is a serious process. We don't want people to be flooding the office with complaints that are not serious, perhaps violations of Charter rights or that sort of thing, that it's not to be taken lightly and that something that is frivolous or a mean-spirited attack on an agent at a border crossing without foundation, I think a little common sense has to prevail here. But I put it in for these reasons that people would realize this is a serious process and it's not an all-out hunting season on the CBSA. That's not what this is meant to be.
Senator White: Thanks again, Senator Moore. Congratulations. This is very timely for us.
My question surrounds the same section as Senator Jaffer and whether or not the individual whose complaint has not been investigated, refused to be investigated, would they have the same access to an appeal to the Federal Court, or is that only for completed complaints?
Senator Moore: They are for completed complaints.
Senator White: Is there any appeal process for someone whose complaint has been identified as trivial, frivolous, et cetera?
Senator Moore: No, there is not.
Senator White: There's no appeal?
Senator Moore: No, sir. The idea, just to make it clear, before the inspector general proceeds, works toward coming to a decision, he or she will be talking to the agency as well as the complainant to gather facts and evidence so that he or she may have all the pertinent information before them before making a decision.
Again, the office is not going to be treating this lightly, either. It's responsibility and authority here, and people have to realize that this is an important function and is to be taken seriously.
Senator White: Thank you, senator. A few years ago there was an issue about complaining about senior officers within the RCMP and whether or not members of the RCMP could file a complaint. Would this legislation allow CBSA officers to complain about senior executives within the agency?
Senator Moore: I didn't think of that, to be honest with you. This was motivated by —
Senator White: External complaints.
Senator Moore: Yes, looking at the rights of citizens, people caught up in the immigration process.
Senator White: Thank you very much.
[Translation]
Senator Carignan: It is probably just a typo, but the French version of subclause 15.17(2) says "Sour reserve'' when it should say "Sous réserve''.
How important is it to you for people other than those who have been detained or the subject of an investigation by the Canada Border Services Agency and third parties be able to file complaints?
[English]
Senator Moore: Let's just talk this through. A party who is not seeking to register a complaint, who, in his or her mind, wasn't happy with the way they were treated, that's one thing. But you're asking what about another party outside of that group.
I would think that if that happened, the inspector general would probably take notice of that and I guess look into the situation in terms of monitoring how the agency performs and whether or not there's a valid reason or something he could constructively add to make things better, not by way of a crank or an unfounded intervention but something serious that could perhaps help, I would think; but I haven't thought of a third outside of this immigration system wanting to do that. If they did, I would think, in terms of his mandate to monitor the functioning of the agency, he would perhaps look at that.
[Translation]
Senator Carignan: I have a problem with the legal remedy set out in clause 15.21 and following, and particularly with one aspect of subclause 15.22(5), which reads:
(5) Where, in proceedings under subsection (1), the Court concludes that the Agency has failed to comply with this Act, the Court may grant any remedy that it considers appropriate and just in the circumstances.
I read the bill and the only obligation that I found for the CBSA is that it must meet the requirements set out in paragraph 15.11(1)(b), where the inspector general provides a report to the minister and the president containing, and I quote:
(b) where appropriate, a request that, within a specified time, notice be given to the Inspector General of any action taken or proposed to be taken to implement the recommendations contained in the report or reasons why no such action has been or is proposed to be taken.
That is the only place where I see an obligation that the agency must meet, namely, the obligation to indicate, within a specified time frame, whether it implemented the recommendations or refused to do so. I do not see any compulsory clauses for the agency anywhere else. Will the agency be subject to any other constraints?
For example, subclause 15.22(5) mentions situations where:
. . .the Agency has failed to comply with this Act. . .
However, no real obligation is imposed on the agency, other than the obligation to submit to the inspector general's investigation. Other than that, all the agency is required to do is explain why it implemented the inspector general's recommendations or why it refused to do so.
[English]
Senator Moore: In the first instance, the agency would be required, as any other party, to not obstruct the inspector general in his or her carrying out their duties, fulfilling the mandate. That would lead to the process being fully completed. I think you're suggesting that perhaps the agency would not do that.
Well, it seems to me, first, the inspector general I expect would go to the minister and to the president of the agency and let it be known that I'm not happy, people aren't doing their job or they're not providing me with the information I need.
I would expect ministerial pressure could be applied. He or she could go public, and I don't think the agency would want that. So I don't think that in the spirit of the bill and what we're trying to do here, the agency would be wise or would be inclined to not respond fully and to act in accord with the wishes of the inspector general.
Senator, if you have wording that would make that tighter, I am —
[Translation]
Senator Carignan: I do not see a provision that recommends that the agency not interfere with the inspector general's work. Should there be one?
[English]
Senator Moore: So you don't think 15.20 of the penalty stuff would be enough to — anyway, as I said —
The Chair: Colleagues, time is running on us, and I think Senator Carignan has raised a point here that we can follow up at a later time and maybe ask for more information. Can we conclude with Senator Kenny?
Senator Kenny: Senator Moore, one of the things that came to mind when I went through this bill is the relationship between the inspector general and the union. As you know from your time on this committee, the union has been of assistance to us on scores of occasions. Did you consider any relationship between the union and the inspector general?
Senator Moore: Relationship, you mean in terms of him being a member of?
Senator Kenny: No, certainly taking their views into account. Their perspective was frequently of assistance to this committee.
Senator Moore: Yes, I recall. Again, it seems to me that he or she carrying out the job, and in terms of monitoring how the agency performs and trying to make it better, there's nothing to stop the inspector general from speaking with the president of the union and saying, "I'm finding this. What do you think? It might be helpful; it might be better if we did something a little differently here.'' He's free to do that. It would be a healthy relationship, I would think.
Senator Kenny: Perhaps I'm even thinking of something as simple as an encouragement in the legislation to solicit their views on things.
Senator Moore: I didn't think about that, and I don't know if — well, I guess, who are you going to solicit from? I'd like to have the inspector general have the freedom to connect with whatever party. You start listing and people get excluded. I didn't think of it that way.
I don't know if that's satisfactory or not, senator, but that's where we are.
The Chair: Perhaps, Senator Moore, before we conclude here, I'm looking at proposed section 15.9, where the inspector general has the ability to investigate any complaint under this act and has the power to summon, to administer oaths, to receive and accept evidence.
I want to inquire further from Senator Kenny and Senator Carignan: Is this the section that would, from your perspective, give the ability to the inspector general to have that authority to require people to come forward who he or she feels are required in order to be able to deal with an issue that has been brought before his or her office?
Senator Moore: I think so. I thank you for that intervention. The inspector general can summon people. It is pretty weighty authority. If he's not getting cooperation from somebody in the agency, as I mentioned to Senator Carignan, he can go to the minister or to the president of the agency; or, in the final analysis, he says, "Listen, if you don't come and do this properly, I have the authority to require you to appear.''
So I would think that would answer it. If there's any way you want to tighten that up —
[Translation]
Senator Carignan: I was not necessarily commenting on the inspector general conducting an investigation but on him forcing a specific outcome. The inspector general is authorized to make recommendations, but there is nothing to stop him from trying to force the agency to implement his recommendations. That was what I was getting at.
[English]
Senator Moore: Are you suggesting that if the inspector general makes a finding and it requires the agency to do something differently, there is not enough here to compel them to do that? Is that what you are thinking? I will look further. I just didn't think anybody would not adhere to the law.
The Chair: Colleagues, Senator Kenny and Senator White, and then we will conclude.
Senator Kenny: I assumed that if the inspector general makes a comment about how the agency is functioning, the agency takes a risk if it doesn't follow his advice. They're going to find themselves with the media covering it, and the court of public opinion will prevail. Frankly, government agencies don't like to have criticism about them. See how people respond to the Auditor General. When the Auditor General says something is wrong, you hear departments saying, "We're adopting his whole report. Whatever he said, we will do.''
Senator Carignan: I agree with the media, but 15.22(5) said the tribunal could —
The Chair: I'm going to conclude with Senator White because we have other witnesses to line up.
Senator White: For a few decades, the exact same challenges have been faced by complainants to the RCM; they end up going to the Public Complaints Commission or External Review Committee, and at the end of the day the decision maker is still the commissioner. The commissioner can take the heat if he can take the heat, and nothing happens.
That's the concern being raised: Where is the hammer if at the end of the day the President of the CBSA ultimately can ignore the results of the inspector general? That's really, I think, what's being said, unless I'm missing it.
Senator Moore: I was trying to allude to that in my response to one of the questions. I would think that the official pressure from the minister, and again public — I may be wrong, but I think the integrity of the system would see people do the right thing. Maybe I'm too much of a Boy Scout, but I think that would happen.
The Chair: There's nothing wrong with being a Boy Scout, Senator Moore.
I want to thank you very much for raising the issue and bringing it forward, through the Senate, to the committee. It is fortuitous as far as timing is concerned. It is an issue that has to and should be dealt with by the government. Senator Moore, thank you for appearing.
Colleagues, I will ask the witnesses to take their seats, and I want to welcome everybody to the Standing Senate Committee on National Security and Defence, as we continue our look at Bill S-205.
We give a special welcome to Senator Moore, now as a participant.
Joining us for our second panel are Marie-Claude Landry, Chief Commissioner, and Fiona Keith, Counsel, Dispute Resolution Branch, both from the Canadian Human Rights Commission. From the Civilian Review and Complaints Commission for the RCMP, we have Ian McPhail, Chair; Richard Evans, Senior Director, Operations; and Joanne Gibb, Director, Research, Policy and Strategic Investigations for the RCMP.
Welcome. I understand that Ms. Landry and Mr. McPhail have opening remarks. Ms. Landry, please proceed.
[Translation]
Marie-Claude Landry, Chief Commissioner, Canadian Human Rights Commission: Honourable senators, thank you for inviting me to take part in this important discussion today. I would like to introduce my colleague, Fiona Keith, counsel for the commission.
We are encouraged to be discussing legislation that would create a monitoring and oversight body for the Canada Border Services Agency. Today I have two messages I would like to share with you.
[English]
First, effective monitoring and oversight of human rights protection in the delivery of national security services must include the collection of human-rights-based data. Second, everyone in Canada, no matter their circumstances or how they ended up here, is entitled to basic human rights protection. This is why we have joined the call for independent monitoring and oversight of the Canada Border Services Agency in relation to migrants and other foreign nationals in detention.
Most of the legislation that gives Canada's national security organizations authority to operate on our behalf is silent on human rights protection. We are convinced that effective monitoring and oversight must be supported by the collection of human-rights-based data.
Our opinion is informed by a decade of research on national security and human rights in the Canadian context, which culminated in a special report to Parliament in 2011. The commission's report recommended that Parliament require national security organizations to collect human-rights-based data on their performance. It is also recommended that national security organizations be required to share the information with Canadians.
As it stands today, there are no processes in place to collect, track and report human-rights-based data related to the delivery of national security services.
Many organizations have policies to prevent discriminatory practices such as profiling, but few can demonstrate whether these policies are followed. None have the hard numbers to assess whether unjustified bias against people due to characteristics such as race, religion or ethnic origin is taking place in the field.
The absence of this information has the potential to impact public trust. Collecting and analyzing human-rights- based data will help national security organizations ensure that they deliver services in ways that respect human rights. Making this data available to the public will increase trust and confidence in the activities of national security organizations.
[Translation]
In the past year, troubling reports about conditions in detention centres have convinced us that independent oversight and monitoring of the activities of national security organizations is necessary to ensure human rights justice in Canada.
A University of Toronto report and news stories have shone a light on the CBSA's arbitrary detention of migrants. Thousands of migrants, including women and children, are being arbitrarily held by Canada Border Services Agency in various detention centres.
[English]
They have no access to human rights protection. This gap results in part from a provision in the Canadian Human Rights Act that limits its protection to those who are legally present in Canada. Put another way, the very law designed to protect people from discrimination in Canada does not apply to some of the most vulnerable people in our country. This lack of human rights justice for foreign nationals held in Canadian prisons and detention centres is an urgent matter that requires immediate redress.
[Translation]
As I mentioned earlier, everyone in Canada, no matter their circumstances or how they ended up here, is entitled to basic human rights protection. If we are to be a world leader in human rights, anything less is unacceptable.
[English]
We must lead by example.
In conclusion, we are encouraged to be discussing measures to bring about more effective monitoring and oversight for a national security agency. The reasons for doing so are compelling. As Canada's national voice on human rights, the commission urges you to consider legislation that will ensure that the activities of national security bodies are consistent with human rights protection.
Thank you for your attention. We look forward to answering your question.
Ian McPhail, Chair, Civilian Review and Complaints Commission for the RCMP: Thank you, Mr. Chair, to you and your colleagues, for inviting me here today. Let me open by saying that as the chairperson of the Civilian Review and Complaints Commission for the RCMP, I firmly believe that to be responsive and accountable to the needs of the public, law enforcement agencies must not only be subject to external civilian scrutiny but also be accepting of such review.
Canadian law enforcement agencies are entrusted with extensive powers, such as search, seizure, arrest, detention and, when necessary, the use of force. Those who exercise such exceptional authorities must do so responsibly and in turn be held to the highest degree of accountability.
In the case of the RCMP, such accountability is multi-faceted. There are internal accountability mechanisms, such as policies and procedures, which require members to take notes, document their actions, submit reports, and adhere to the RCMP's code of conduct. Moreover, internal audits and evaluations ensure standards are maintained and performance gaps are addressed.
The RCMP is also held to account by external mechanisms, such as the Auditor General of Canada, the Privacy Commissioner, parliamentary committees such as this one, as well as the role of the judiciary.
In the 1970s, provincial governments recognized that the unique powers held by police needed to be balanced with an independent civilian body which could review public complaints about police conduct in an impartial, fair and transparent manner. Provincial governments have created police commissions to oversee public complaints about police conduct as a means of strengthening the accountability of law enforcement agencies to the communities they serve. These bodies broadly mirror the federal model.
In 1988, the Commission for Public Complaints Against the RCMP was created to recognize that complainants and RCMP members were entitled to unqualified confidence in the complaints process, something an independent, external body with the power to review allegations of improper conduct could provide.
The public complaints process allows an individual to make a complaint about individual RCMP member conduct. The complaint is investigated by the RCMP and the complainant is informed of the results.
Unlike the proposed bill currently before this committee, the commission does not investigate all complaints at first instance. Rather, the RCMP investigates the matter initially and, if the complainant is dissatisfied with the RCMP's disposition of the complaint, they can then request a review by the commission. This is typical of most police complaint systems, including the military police. In certain circumstances, where it is not in the public interest for the RCMP to conduct a complaint investigation, as chairperson, I can initiate my own investigation.
A similar system is in place to respond to public complaints against CSIS. Individuals must first make a complaint to the director, and only if a response has not been received within a reasonable time or the complainant is dissatisfied with the response given can SIRC then investigate.
In 2014, amendments to the RCMP Act resulted in the creation of the Civilian Review and Complaints Commission. The commission's mandate was expanded beyond public complaints to include systemic reviews of RCMP activities to ensure they are carried out in accordance with legislation, regulations, ministerial directions or any policy, procedure or guideline.
This has proven to be the most significant change. Our experience has shown that the process could be strengthened by a requirement for service standards for the RCMP or other law enforcement body whose actions are being reviewed.
The commission is currently undertaking two such systemic reviews: one into workplace harassment, at the request of the Minister of Public Safety, and the other into the RCMP's implementation of the relevant recommendations contained in the Report of the Commission of Inquiry into the Actions of Canadian Officials in Relation to Maher Arar.
The amendments to the RCMP Act also gave the commission authority to access information and determine what information is relevant; summon witnesses and compel evidence; conduct joint complaint investigations with provincial counterparts; and, in the case of a serious incident, to appoint an observer to assess the impartiality of an RCMP investigation.
Last week I participated in the annual conference of the Canadian Association for Civilian Oversight of Law Enforcement, an organization dedicated to advancing the concept, principles and application of civilian oversight of law enforcement throughout Canada and abroad.
At that time, Chief Clive Weighill, President of the Canadian Association of Chiefs of Police, stated his belief that a robust structure of civilian oversight and review benefits law enforcement bodies and public safety generally by increasing public confidence in the fairness, accountability and transparency of law enforcement.
I don't think my colleagues will mind if I speak on their behalf by concluding that civilian oversight is the cornerstone of law enforcement accountability and the key to maintaining the trust of Canadians.
Thank you for giving me this opportunity to share my thoughts. I would be happy to answer your questions.
The Chair: Thank you, Mr. McPhail. It is always a pleasure to have you as a witness. It is going to be interesting to hear your further thoughts in respect to this particular legislation as opposed to what you operate under and whether you would recommend various changes or have some observations regarding Senator Moore's bill.
Senator White: Thanks to all of you for being here. Mr. McPhail, I'm not a big believer in building new organizations to do old things. Do you see an opportunity for your organization to expand its role and take on a similar role with CBSA?
Mr. McPhail: Obviously, subject to decisions of parliamentarians, but I would see the role of the CRCC as being quite appropriate. In fact, it has given us the expertise internally in dealing with public complaints, now conducting systemic reviews and investigations, particularly when we consider that the CBSA is fairly similar to the RCMP in that it has become primarily a law enforcement body.
There are, as with the RCMP, some national security functions which are a very vital part of its role, and there is some revenue-collection as well, but primarily law enforcement. As this committee's report showed, it enforces some 90 different statutes and international agreements.
Yes, if required, the CRCC would have the expertise, with additional resources, of course, to take on that role.
Senator White: Following that along, a lot of CBSA's powers end at a point, for example, at border crossings. They can't do some things. That forces them to call upon the support of the RCMP and other police agencies. In essence, the RCMP actually connects directly with investigations. That already occurs.
Mr. McPhail: Very much so. In fact, not only does the RCMP work closely with CBSA, but I believe the CBSA could learn in areas such as deaths in custody, for example, from the RCMP experience. The RCMP has dealt with that problem. It has developed pretty robust policies and procedures to deal with in-custody deaths. Our commission has investigated a number of them. They made recommendations accepted by the RCMP, and I suspect that it's an area where, as I say, the CBSA could benefit from the RCMP experience.
Senator Jaffer: Thank you to all four of you for being here. There are so many questions and so little time, but I will start off with you, Ms. Landry.
Your whole presentation was on human rights protection and what that should look like. It would be very useful if you could define these terms for us. For example, you said they have no access to human rights protection. You also stated that we need to collect data. What do you mean by "they have no access to human rights protection''? I would imagine human rights would be there as part of our way of doing things, and obviously you have found they are not, so it would be useful to hear that, plus the data.
Bringing this back to this present legislation, do you see anything that we should add to this bill that would provide those protections?
Fiona Keith, Counsel, Dispute Resolution Branch, Canadian Human Rights Commission: Thank you. What we mean by human rights protection in the context of the chief commissioner's speech is access to the Canadian Human Rights Act. As the chief commissioner mentioned, there is a provision in the Canadian Human Rights Act. It's section 40(5), which limits the ability to file human rights complaints under the federal legislation to those who are legally present here in Canada.
It's this limiting provision which has the effect of excluding migrants and foreign nationals, many thousands of whom are in detention centres being held by CBSA, from filing human rights complaints. This has the downstream effect of removing from the scrutiny of Canada's human rights watchdog the protection of the Canadian Human Rights Act.
Senator Jaffer: Mr. McPhail, you were talking about systemic. Can you define what you meant by systemic reviews?
Mr. McPhail: They may be policy reviews. In the case of our harassment investigation, we'll be looking into both specific cases but also general degrees of harassment. We'll be looking into the culture of the RCMP, and whether that contributes to the issue of harassment or not, as the case may be.
Senator Jaffer: I understood from your presentation that you could start an investigation. I'm curious, with the systemic reviews, did you start an investigation on sexual harassment?
Mr. McPhail: At the request of the Minister of Public Safety —
Senator Jaffer: But just recently, not before.
Mr. McPhail: We did a review some three years ago. Now, that was a more limited review because, while we interviewed some 60 or 70 individual members of the RCMP, it was primarily a review of harassment files within the RCMP, and we looked to see what we could discover from those. We made recommendations of a more general nature, with the expectation that it was the commissioner's responsibility, as the manager of the RCMP, to implement those recommendations.
This review will be more wide ranging as we're going to make a greater attempt to determine the extent of harassment culture, as I indicated, and make more specific recommendations.
Senator Jaffer: The same applies with the communities that I serve. They often talk about racial profiling, a systemic issue, and I am interested if you are looking at this or if you have set policies or what is happening with the issue of racial profiling within the RCMP.
Mr. McPhail: Well, absolutely if that forms part of harassment. We have completed an investigation into policing in northern British Columbia where of course there is a significant racial component. We have made some findings, because there are a number of areas where we're of the opinion that policies and procedures and actions can be improved. We have submitted our report to the commissioner; the commissioner has reviewed it and agreed in principle, and we are waiting for his specific comments.
Senator Jaffer: Will he make it public?
Mr. McPhail: Yes, it will be made public.
[Translation]
Senator Dagenais: My questions are for Mr. McPhail.
Do you think it is reasonable to create a monitoring and complaints mechanism for the Canada Border Services Agency? Do you think that such a mechanism will change the way the agency acts and make it more accountable?
[English]
Mr. McPhail: First of all, it does make sense. How will it change? It is impossible for me or anyone else to say how specifically it will be changed, but I think we can all agree that regardless of our job or our profession, our activities, the checks and balances and review usually result in better policies and actions on the part of the body being reviewed.
[Translation]
Senator Dagenais: If you could, I would like to you to compare your organization, the Civilian Review and Complaints Commission for the RCMP, to the provisions of Bill S-205, which pertains to the Canada Border Services Agency. I would like to draw your attention to the provisions that allow the inspector general responsible for looking into complaints filed against the Canada Border Services Agency to seek court rulings.
[English]
Mr. McPhail: One significant difference in Bill S-205, from our commission, is that the inspector general is expected to investigate all complaints in Bill S-205, and I would simply caution you that that will be a very expensive model indeed.
Our budget is slightly over $10 million. We have about 75 members in the commission. About 10 per cent of the reviews conducted by the RCMP fail to satisfy the complainant, and so our commission then conducts an investigation, or a review of the RCMP's disposition. In other cases, where we believe that there's a public interest at stake, or where that model would be inappropriate, the commission will conduct either a public interest investigation or what is called a chair-initiated complaint.
In terms of actions before the court, we review RCMP activities, both in terms of the acceptability of those activities to Canadians at large in terms of RCMP policies and procedures and also in terms of the jurisprudence. While the commission has the power to go to Federal Court should there be a fundamental disagreement between it and the RCMP, that's generally not a productive approach and not one that we've proceeded with during my chairmanship.
Senator Day: Mr. Chair, a point of clarification. I didn't hear the percentage of complaints that are first looked at internally and are not satisfied and therefore come to you.
Mr. McPhail: About 10 per cent.
Senator Day: Ten per cent?
Mr. McPhail: Yes.
The Chair: I want to follow up as well. Is that 10 per cent of five complaints or 1,000?
Mr. McPhail: On one tenth of those, the complainant would advise us that they were not satisfied with the RCMP's disposition, so we would conduct either a review of how the RCMP had disposed of the matter or a more thorough investigation.
[Translation]
Senator Carignan: Who are the complainants?
[English]
Mr. McPhail: The complainants could be any member of the public complaining about actions of RCMP members in the conduct of their duties.
[Translation]
Senator Carignan: Again with regard to complainants, can an RCMP officer file a complaint about the behaviour of another RCMP officer, in the case of harassment, for example?
[English]
Mr. McPhail: Yes, they can, and they have.
[Translation]
Senator Carignan: What power do you have to enforce your decision? Unless I am mistaken, your power is protected by a privative clause. Unlike what is planned for the inspector general, complainants cannot go before the court to challenge or request a review of your final report in the final stage of the process. Is that correct?
[English]
Mr. McPhail: Any report from an administrative tribunal, which is essentially what the CRCC is, could be appealed to Federal Court. It's not usually the case because the CRCC does not have the power to enforce its recommendations, which I think is an appropriate restriction on its power because it's the commissioner's duty to manage the RCMP.
The CRCC will make recommendations to improve policies and procedures. I can tell you that 80 to 90 per cent of those are accepted. If the commissioner disagrees with our recommendations, the commissioner must respond and explain why in writing. That explanation also has to go to the minister, and those reports were made public.
As a result, there's the power both of the minister and of public opinion, both of which can be quite powerful.
[Translation]
Senator Carignan: Basically, when an officer files a harassment complaint against another officer, the RCMP cannot be compelled to compensate the complainant if the commissioner does not agree.
[English]
Mr. McPhail: In the case of indemnification, that occurs when there's court action. The CRCC has no power, nor does any complaint or review body, that I'm aware of, have the power to order indemnification.
The Chair: Senator Carignan, if you can be short and concise with your question.
[Translation]
Senator Carignan: My question is for Ms. Landry or her colleague and has to do with the expectation of privacy at the border. We have very few expectations at the border. The bill talks about respecting and protecting the individual rights and freedoms of Canadians and foreign nationals. The rights of Canadians are protected under the Canadian Charter of Rights and Freedoms, but neither the law nor the Charter applies to foreign nationals. How can we ensure that this provision of Bill S-205 is enforced? In reality, we cannot enforce it without amending Canada's legislation.
Ms. Landry: I will keep my answer brief and then turn the time over to my colleague, who has more technical expertise in this area. One thing is certain: the provision of the Canadian Human Rights Act that talks about being lawfully present in Canada should be repealed because it is problematic. The Canadian Human Rights Commission believes that everyone on Canadian soil should have the right to basic human rights protection. Clearly, there is a problem with that provision.
[English]
Ms. Keith: I don't have a lot to add except to say that privacy, while it's a human right, is not within the mandate of the Canadian Human Rights Commission. We would say, as the chief commissioner has said, some basic minimum human rights are required for foreign nationals as well in Canada.
[Translation]
Senator Carignan: The inspector general's mandate to ensure that the individual rights of foreign nationals are respected is inconsistent with the scope of the Charter, which does not include any provisions on the rights of foreign nationals.
[English]
Ms. Keith: There is an inconsistency, as you pointed out, between the scope of the mandate of the inspector general, which extends, as you've pointed out, to foreign nationals, and the scope of the Canadian Human Rights Act.
The Chair: Perhaps for the record, have you had any complaints by Canadians with respect to the CBSA that have come to the Canadian Human Rights Commission? If so, how many do you normally get in a year?
Ms. Landry: We certainly receive complaints. We had 77 complaints concerning the Canada Border Services Agency.
The Chair: This past year?
Ms. Landry: No, in total since 2011.
The Chair: Thank you. I'd like to move on now to Senator Ngo and Senator Day.
Ms. Landry: We should not forget that we have a disposition to be lawfully present, and that creates some problem.
The Chair: Yes. I understand that.
Senator Ngo: Thank you. I would like to follow up on the questions asked by Senator Jaffer.
You say that as of today there is no process for you to collect, track and report human rights data related to the delivery of national security service. I would like you to elaborate more. What do you mean by no processes in place to collect, track and report?
The Chair: Is this question to Ms. Landry?
Senator Ngo: Both. For the Human Rights Commission first. It's in your presentation.
Ms. Keith: The Canadian Human Rights Commission takes the position that it's very important for organizations to collect human-rights-based data so that they can report on the potential human-rights-based impacts on the services they offer.
For example, we would say that in screening decisions at border crossings, data should be collected about how those discretionary decisions are made with respect to the racial identity of the clients, for example, their national or ethnic origin.
Senator Ngo: When you say that, does that mean that you don't have access?
Ms. Keith: We would have access if the data were collected, but there is no obligation on any national security organization in Canada right now to collect that kind of data.
Senator Ngo: If you want to collect the data or ask the CBSA to provide you information regarding human rights violations and so on, is that up to the discretion of the CBSA to provide? You say they have no process in place, so they can refuse.
Ms. Keith: If their officers are not being asked at border crossings to collect that kind of information as they do their work, we can ask for it, and we have, but it doesn't exist.
Senator Ngo: How about you, sir? Do you have any problem with that?
Mr. McPhail: Well, I'm going to answer this in two parts. One, while the new legislation that we're operating under was a great advance, our experience has shown us that it's important that the body whose actions are being reviewed should have performance standards, performance measures. That's not built into the Royal Canadian Mounted Police Act, nor do I believe it's built into Bill S-205.
I'm going to call on Joanne Gibb just to outline how we choose our subjects for systemic review, which I think might be helpful.
Joanne Gibb, Director, Research, Policy and Strategic Investigations, Civilian Review and Complaints Commission for the RCMP: We developed a risk matrix to identify issues and to weight them and decide, because the mandate of the RCMP is obviously quite broad. Through a risk matrix, we've created a list of issues that we can look at. Racial profiling would certainly be on the list, along with many other issues.
The case of our first systemic review, which Mr. McPhail referred to, that he initiated, is in fact into the recommendations provided by Justice O'Connor in the Maher Arar affair. If memory serves, one of the reasons is related to this idea of racial profiling, in particular in that instance to the Canadian Muslim community. It is an area that we would examine as part of that systemic review.
Drawing from our experience in northern B.C., for example, there were allegations that there was profiling or bias against indigenous people. When we tried to look at that in the case of public intoxication, for example, who is incarcerated and who isn't, we were not able to report on that because the race of the individual who was detained wasn't there; we didn't have that information.
It's difficult to report on what could be systemic issues, because the data just isn't collected.
Senator Ngo: If that's the case, then would you suggest some sort of mechanism, like an oversight board or a review commission, be built into Bill S-205 so that they have access to the kind of information you need for the inspector general in this case?
Mr. McPhail: Whether it's an inspector general or a complaint model, whatever the model is, there has to be a robust ability to obtain information. I think Bill S-205 does provide that. It's one thing to have the right to get information, but it's also necessary that the body being reviewed have a corresponding obligation to meet performance standards and to provide the information within a reasonable time frame.
Senator Day: With the change two years ago in your commission, how much more appropriation have you received?
Mr. McPhail: The budget of the commission was increased by approximately $2 million.
Senator Day: And how many more employees?
Mr. McPhail: We're at about 75 now.
Richard Evans, Senior Director, Operations, Civilian Review and Complaints Commission for the RCMP: We have probably added about 15.
Senator Day: Those 15, then, would be involved with these new responsibilities?
Mr. Evans: Primarily, yes.
Senator Day: That's what I wanted to go into. Is the adjective "systemic'' yours, or is that in the legislation? I don't have it in front of me.
Mr. McPhail: That's in the legislation.
Senator Day: It's for you to interpret, then?
Mr. McPhail: Correct. Let me correct myself. The term in the legislation is "a specified activity,'' so "systemic'' is our term.
Senator Day: Who specifies what activity? Is that your choice? Do you choose what activities?
Mr. McPhail: Yes.
Senator Day: What's the terminology in Bill S-205, the opportunity to review activities within the service?
Mr. McPhail: Yes.
Senator Day: Any activity that you choose to look into?
Mr. McPhail: That's correct.
Senator Day: Most of us are aware of the court case that has just begun in Moncton, New Brunswick, in relation to the lack of proper equipment supplied by the force to the members. Would that be a systemic thing that you would be looking into?
Mr. McPhail: It could be, although because it's currently a matter before the courts, it's not something that we would take on because we would have no interest in duplicating an existing process.
Senator Day: It didn't occur to you or anybody else to look into this before it became a court case?
Mr. McPhail: As Ms. Gibb has outlined, we prepared a matrix of possible subjects. There are a great many subjects. We chose two because that's where we're starting. We would have liked to have done more, but our team is new. We concluded that they were both significant, and we had the resources to deal with them.
As we complete those and gain further expertise, we will definitely be involved in additional areas, and that could well have been one.
Senator Day: Thank you for that.
The final question I have is to Ms. Landry. It relates to your comment that in the past year, troubling reports about conditions in detention centres have convinced you that independent oversight and monitoring of activities of national security organizations are necessary to ensure human rights justice in Canada.
Are you convinced that an oversight body could do the human rights monitoring aspect? Have you had an opportunity to review what's being proposed by Senator Moore in Bill S-205? Would that oversight aspect or the review and monitoring aspect do what you feel should be done from a human rights point of view?
Ms. Keith: Thank you for your question. The proposed legislation refers to the power of the inspector general to look at any activity of the agency, including "the respect for and protection of individual rights and freedoms of Canadian citizens and foreign nationals . . . .'' That is proposed section 15.5(1)(a)(vi).
I think what the commission would say is that although the proposed legislation is somewhat unclear with respect to the scope of jurisdiction of the inspector general, this suggests that he or she will have some jurisdiction to consider human rights.
I think the concern of the commission with respect to the protection of the rights of foreign nationals would be that the powers of the inspector general are recommendatory. When you're talking about fundamental rights, recommendatory powers are generally not what are advocated by international human rights standards.
Senator Day: Would you like to see some wording changed here to make the power and the mandate of the inspector general be more in conformity with what you believe to be necessary?
Ms. Keith: We would like to see the effective protection of the basic human rights of foreign nationals.
Senator Day: That wording?
Ms. Keith: Yes.
The Chair: Before leaving that subject, I want to follow this up because it's important.
The wording would have to be very carefully considered — and I would like to hear your comments on this — to ensure that the Canada Border Services Agency can do the job that we've asked them to do, to screen individuals and make sure that those that are coming into the country meet the criteria that we've asked them to enforce. The question I have with respect to the wording of such a section is, depending on how it's worded, it could become a situation where the CBSA would not be able to do what we're asking them to do, if you follow what I'm asking.
Do you have any comments on that? We want to make sure that those coming into the country meet the criteria dictated by Parliament.
Ms. Keith: As Canada's national human rights institution, we're not suggesting that there be any change in the powers of the CBSA. Our suggestion is with respect to how those powers are exercised. It would be our position that they should be exercised in a manner that's consistent with basic human rights.
Senator Oh: My question is similar to Senator Day's. We were all troubled by the eleven deaths of the individuals held in custody. Will the provisions in Bill S-205 help the accountability and restore faith in Canadians?
Mr. McPhail: Yes, senator. There's no question that an external review of the circumstances can accomplish two things. First, it could help provide guidance to the CBSA with respect to policies that it should adopt to prevent or reduce these occurrences for the future.
Second, in terms of the public, I believe that it would provide reassurance that there was an independent voice investigating. I would concur with you as to how important this is.
Ms. Keith: We agree that this is a very important area. We would also add to this the legislative requirement on national security organizations to collect human-rights-based data. This is a very important part of monitoring.
Senator Oh: For any foreign national visiting Canada, I think a friendly face of the CBSA would make a difference for the whole world.
[Translation]
Senator Dagenais: Thank you, Mr. Chair. My question is for Mr. McPhail. If your investigations were less private, do you think that the public would be less disapproving of some of your decisions? The public does not always agree with your decisions. Do you think that this situation would improve if your investigations were less private?
[English]
Mr. McPhail: No, senator, actually, I wouldn't. In terms of the investigations we have done that have been considered newsworthy — the review of the RCMP actions in High River, for example, last year — I think I can honestly say that without exception, they've been well received by the public. The more transparent the reviews and investigations can be, I believe, the higher the opinion of the Canadian public will be.
Now, there may be — there obviously always is — room for disagreement. However, as long as people understand the process and see the fundamental fairness and thoroughness of the process, I think there's going to be a much higher acceptance of the result.
[Translation]
Senator Carignan: My question is also for Mr. McPhail. You know how many complaints your commission received from RCMP officers, but do you have any idea how many complaints were filed in comparison to those filed by the general public? What is the percentage?
[English]
Mr. McPhail: I'm going to ask Mr. Evans to deal with that question, senator.
Mr. Evans: As a point of clarification, members of the RCMP are not entitled to make complaints to us as a general rule. The legislation specifically says that if another process is available to a member, that's the process they would follow.
In the case of harassment, an individual complaint would be made within the RCMP. The harassment process, the code of conduct, belongs to the RCMP to manage.
What Mr. McPhail was referring to, in the context of our specified activity review, we will be speaking to individual members about their sexual harassment stories, but we don't receive their specific complaints. The answer to the question is, of those 2,000 or 2,200 complaints, few of them would be coming from RCMP officers.
Senator Carignan: Can you give us the numbers?
Mr. Evans: I can endeavour to find the numbers. It's difficult for us to track because the only way an RCMP member could file a complaint would be as a citizen having an interaction with an RCMP officer. They wouldn't be obliged to identify themselves.
Senator Carignan: It's very rare?
Mr. Evans: It's quite rare. It would be an off-duty member who has an interaction with an on-duty member and who might make a complaint about a use of force or something.
Mr. McPhail: It certainly does happen, but we haven't specifically tracked that.
The Chair: Can we pursue this for a minute because it's currently an issue the public is concerned about as well as the RCMP.
I don't quite understand where a member of the RCMP who feels that they have been under harassment or has suffered sexual harassment can actually go and feel that they have an impartial hearing and the confidentiality to be able to put that issue forward to feel that they have been heard while, at the same time, their position within the organization hasn't been threatened.
Mr. McPhail: Those are fundamental issues, senator. When we conducted our harassment review in 2013, one of our recommendations was that there be an appeal or complaint mechanism outside the normal chain of command in the RCMP for members to express concerns or complaints about harassment.
Part of our investigation this year is to determine to what extent the recommendations made in 2013 have been implemented. We have no indication that that particular recommendation has been implemented. It's of significant concern to us.
The Chair: There is really no appeal procedure or mechanism for a member to put their position forward and feel that they have been fairly heard and impartially heard? Is that what you just said to us?
Mr. McPhail: Yes.
Ms. Landry: If I may, senator, they can come to us first. Actually, we currently have a case referred to the Canadian Human Rights Tribunal.
[Translation]
Senator Carignan: That question came to mind because Senator Day spoke about complaints regarding equipment. I understand that there are harassment complaints and complaints about equipment. Do RCMP officers file complaints regarding their equipment?
[English]
Mr. McPhail: The complaints with regard to equipment actually couldn't have been dealt with by us because the legislation says if there's another process already in place, and prior to the court action, there was a complaint under the Canada Labour Code.
With respect to harassment, those are matters falling under the RCMP's internal code of conduct. Perhaps Mr. Evans could make a comment or two about that because there have been some significant changes, which could result in difficulty in the future.
Mr. Evans: There are a few provisions in the RCMP Act that are aimed at preventing duplication. If a member has filed a complaint for harassment it will be dealt with under that stream in the RCMP Act. If they're not satisfied with the outcome of that, there are some mechanisms that don't involve the commission.
As Mr. McPhail says, with respect to the specified activity authority that we have, the legislation requires that we assure ourselves there's no other process under way before we can undertake that review.
[Translation]
Senator Carignan: My question is for the two people in charge of committees or commissions.
Correct me if I'm wrong, but if RCMP officers do not have suitable recourse to deal with problems such as harassment, equipment problems, or any other labour relations problems, and do not have an independent and impartial person to turn to, then are they supposed to file complaints with your respective commissions in order to get an independent and impartial take on the matter?
Ms. Landry: A civilian or a member of the RCMP or any other federally legislated organization may file a harassment complaint or a complaint on one of the 11 grounds set out in the Canadian Human Rights Act with the Canadian Human Rights Commission. In those cases, we conduct an investigation and forward the file to the tribunal if there is sufficient cause.
There is also a process whereby the organization against which the complaint is made may present its own independent mechanism for addressing complaints. Part of our role as a commission is to do an assessment to determine whether the internal mechanism provided for within the organization, including the RCMP, meets the criteria of effectiveness and transparency, et cetera. Then we decide either to refer the complainant to the internal process and he or she can come back if they are not satisfied, or to take over the file if we are not satisfied with the transparency, independence, and speed of the process.
Senator Carignan: What did you do in the case of the RCMP?
Ms. Landry: Complaints are treated on a case-by-case basis. We review them in order to get an understanding of what happened.
Senator Carignan: Are there complaints against the RCMP that you took over because you felt that the RCMP mechanism was not independent and impartial?
[English]
Ms. Keith: Yes, we have dealt with complaints. Often they are filed by complainants who fear reprisal, sometimes because their allegations touch the hierarchy of command. We currently have a complaint before the Canadian Human Rights Tribunal, which is an adjudicative judicial tribunal.
[Translation]
Senator Carignan: Can we get a list of those complaints?
[English]
Ms. Keith: We can provide you with that information later. I don't have it with me today.
Mr. McPhail: Senator, when we did our 2013 report into harassment and interviewed some 65 members of the RCMP, we were certainly told, as you state, there was concern about reprisals, and at the very least there was often a lack of willingness to step forward, which is why one of our key recommendations was a review mechanism outside the normal chain of command, which would preserve a degree of confidentiality.
I'm troubled by the fact that that doesn't appear to have happened, but I don't want to pre-judge the results of our review until we've actually completed it.
[Translation]
Senator Carignan: Of course.
[English]
The Chair: What's the time frame for that report?
Mr. McPhail: Our target was to complete the report within a year. The minister asked us to conduct the report in February of this year. Frankly, we're behind schedule, in that I have written to the commissioner requesting, amongst other things, that members of the RCMP be assured of confidentiality in speaking with us.
At the present time, members of the RCMP are not permitted to speak to the commission without first notifying the commissioner's office, and that's not acceptable in terms of any review.
I wrote to the commissioner about three weeks ago; I am still awaiting a response.
The Chair: Perhaps we haven't had an answer to my question: What's the time frame when you expect this report to be completed, assuming you got a response today?
Mr. McPhail: Assuming we had a response today, we're targeting the spring of next year.
The Chair: Spring of —
Mr. McPhail: 2017.
The Chair: Next year. Oh.
Senator Moore: Thank you, witnesses, for being here. Mr. McPhail, you mentioned there were 2,200 complaints. Over what period of time was that?
Mr. McPhail: That's annually.
Senator Moore: How many members in the RCMP?
Mr. McPhail: About 30,000.
Senator Moore: I was interested and pleased to hear you say that you thought that the creation of an inspector general would cause a change in the way CBSA performs. I'm thinking here that in view of you mentioning, or somebody did, that sometimes work is coordinated between CBSA and the RCMP, to me that just reinforces the idea that we have an independent inspector general looking over the CBSA files. If you're going through that frustration now with what you're doing, I'd like to see a clear line, and I wonder if you think that would be more appropriate.
Mr. McPhail: Without question, senator, some form of independent review is necessary. I think it benefits the CBSA, the public and the complainants. What specific form that review mechanism takes is a matter for parliamentarians.
Senator Moore: You mentioned it being expensive. I don't know if you were here earlier. I spoke about Ms. Jimenez dying in a cell in Vancouver; and how many dollars is a life worth? I'm suggesting if it was only $10 million that's a hell of a deal to save somebody's life.
I want to ask you ladies something about human rights.
The Chair: Can you get to the question, senator?
Senator Moore: I will leave that there.
Mr. McPhail: May I respond?
Senator Moore: Sure.
Mr. McPhail: I agree with you about the question of individual lives, and I certainly didn't mean to put a price on that. As a matter of fact, as I indicated, we investigated a number of in-custody deaths.
My concern was a requirement in the draft bill that would require the oversight body, of whatever nature, to investigate all complaints itself. It's my understanding that the number of complaints would be in the neighbourhood of 2,000.
Senator Moore: I don't know where that came from. I never heard that number.
Mr. McPhail: That's informal advice that I've received, in which case the cost of the review body investigating every complaint through its own resources would be significant.
Senator Moore: With regard to the cases where individuals have died in prisons operated by CBSA, have you investigated those, tried to get information relating to those persons and circumstances surrounding the conditions in those prisons and what happened to them?
Ms. Keith: If those persons are not lawfully present, we do not have jurisdiction.
Senator Moore: You simply don't have jurisdiction?
Ms. Keith: Correct.
Senator Moore: Therefore, you don't ask?
Ms. Keith: Not in our complaints processing role. Last summer, we did make public statements after the release of the report that was prepared by the University of Toronto on the detention of migrants.
The Chair: We do have a number of witnesses coming on stream — in fact, three will be by video — so it is a question of being able to accommodate them as well.
I would like to thank our witnesses. It has been very worthwhile to have you come before us and update us with respect to your various responsibilities.
Joining us in this final panel of the day, as we continue our examination of Bill S-205, An Act to amend the Canada Border Services Agency Act (Inspector General of the Canada Border Services Agency) and to make consequential amendments to other Acts, are, by video conference, Ms. Janet Dench, Executive Director, and Jenny Jeanes, Co- Chair, Inland Protection Working Group, of the Canadian Council for Refugees; and Ms. Sukanya Pillay, General Counsel and Executive Director, Canadian Civil Liberties Association. Appearing before us in person are Julie Taub, Immigration Lawyer and a former member of the Immigration and Refugee Board, here as an individual; and Lorne Waldman, President, Canadian Association of Refugee Lawyers.
Welcome back to the committee, Ms. Dench, Ms. Taub, Ms. Pillay and Mr. Waldman; I know you have all appeared during our previous study of the Canada Border Services Agency, and we're pleased to see you again. Ms. Jeanes, a special welcome, as this is your first appearance.
May I ask Ms. Dench to begin.
[Translation]
Janet Dench, Executive Director, Canadian Council for Refugees: On behalf of the Canadian Council for Refugees, I thank you for inviting us here as part of the study of Bill S-205. I will be sharing my presentation time with my colleague, Jenny Jeanes, Co-Chair of the Inland Protection Working Group of Canada.
The Canadian Council for Refugees is an umbrella organization made up of roughly 180 organizations from every region of Canada. Most of these organizations work with refugees and other newcomers.
[English]
We welcome Bill S-205 with its proposed introduction of a complaints mechanism for the Canada Border Services Agency.
The CCR has long-standing concerns about accountability at the CBSA. In fact, even before the agency was created in 2003, the CCR had been urging that there be an independent oversight mechanism for Canada's immigration enforcement activities.
CBSA is one of the few agencies in Canada with the powers of arrest and detention that is not subject to any independent complaints or monitoring mechanism. In the case of CBSA, the risk of abuse is arguably even higher than with police forces, as they are dealing with non-citizens whose status in Canada is precarious. Refugee claimants and other migrants are among the most vulnerable people in Canadian society.
Recently, we proposed our own model for a CBSA accountability mechanism, which we have shared with the committee. We designed the model to be, one, independent, that is, not subject to departmental or political influence; two, external, that is, organizationally and physically outside the CBSA; three, effective, that is, with sufficient legal powers and resources to investigate complaints and monitor CBSA activities, and its findings have legal consequences.
In our model, you will see that we outline the scope of activities to be covered by the mechanism, the standards against which the mechanism must evaluate CBSA, and the powers of the mechanism.
Jenny Jeanes, Co-Chair, Inland Protection Working Group, Canadian Council for Refugees: We have reviewed Bill S- 205 and would like to highlight some of the key differences between the bill's model and the CCR model.
First, we note that the bill places emphasis on complaints with the assumption that the complainant would be the person affected.
We have concerns that this strategy does not adequately address the realities for many refugees and other vulnerable migrants. We find that often they will not want to make a complaint for fear of negative impacts on themselves. In other cases, they're unable to make a complaint because they have already been deported.
Refugee claimants in detention are sometimes subjected to repeated intense interrogations without a lawyer present, and sometimes say they feel they were mistreated. However, they don't want to make a complaint and they don't want to raise a fuss because they want to be released from detention.
Occasionally, we also hear disturbing reports about the treatment of people being deported. This may happen when there is a failed attempt to deport and the person returns to Canada, but in most deportations the person is removed, and we are very unlikely to hear if abuse has occurred.
As inadequate as it may be, there is currently an opportunity to complain to the CBSA. In our experience, very few people use this complaints process.
For this reason, we have emphasized in our model having complaints by third parties such as NGOs and also having the mechanism doing investigations on its own initiative.
Second, the bill proposes that remedies be sought through a Federal Court application. It is good to have some mechanism to secure remedies, as that is often a shortcoming with complaints mechanisms. However, applications to the Federal Court may not be an ideal solution because it could be difficult for people to access, given that a lawyer would normally be needed.
In our proposal, the mechanism would have the power to order remedies itself.
Thank you very much.
The Chair: Thank you very much, and we will follow with Ms. Pillay.
Sukanya Pillay, General Counsel and Executive Director, Canadian Civil Liberties Association: Thank you very much. I would like to thank the committee for inviting me to appear before you again today.
I note CCLA's serious concerns that we are having this review discussion today and we have heard of another death in CBSA custody.
The CCLA, the Canadian Civil Liberties Association, has been extremely concerned about the lack of accountability for the CBSA. We consider such a gap as being incompatible with democratic values and with the need for public trust in such an important agency.
The CBSA is unique. It not only performs important security functions at our borders, but it's also part of the national security and intelligence framework of agencies operating in Canada. It wields sweeping powers, including law enforcement, arrest, detention and deportation, as well as engaging in the collection of intelligence and the sharing of information with domestic and foreign agencies.
In our view, this has required two things. One, we have to recognize that the agency has the ability to violate or restrain rights, and two, we must ensure that any restraint of rights is done in accordance with constitutional principles of necessity, proportionality and minimal impairment and is justified.
I would echo the comments made by my colleagues at CCR, and I would also point out that we are talking in particular about individuals who are the most vulnerable in Canada.
When we look at a review of a national security agency, in addition to determining whether or not it has met with legitimate legal safeguards, we should also be thinking about whether or not it is operating in a manner that is efficacious. Is it fulfilling its security mandate?
The Canadian Civil Liberties Association has argued in the past that the CBSA requires accountability mechanisms to ensure it is acting subject to legal limits and in compliance with the appropriate legal safeguards. In our view, these would include the Canadian Charter of Rights and Freedoms, the Immigration and Refugee Protection Act, privacy laws and principles, and international human rights and refugee laws, which are legally binding upon Canada. We have also argued in the past for an accountability process which would assess the efficacy of the CBSA actions and policies
In this regard, we have argued for a two-pronged process. One is an accountability mechanism that would allow for independent review of complaints and would allow for self-initiated investigation. We would argue that the complaints process must be read broadly to allow third-party complaints, including counsel or NGOs, as my colleagues have said.
We note that Bill S-205 provides for the creation of an inspector general that would be mandated in section 15.5(1) to monitor and report on the activities of the CBSA, including on its law enforcement powers, which is important, and on its information management, which is crucial.
We also note that the bill wisely refers to respect for the Charter to all persons in Canada, including citizens and foreign nationals. Further, we note the wording with respect to CBSA of "any of its powers,'' and we would interpret this to include powers of determining the conditions of detention of individuals.
Finally, in this respect we submit that the office should be properly staffed and funded to carry out its important mandate.
Two important points we thought were not included in the bill in the interests of time. First, while we welcome the complaints review process, we are concerned that it is unclear in the wording of the statute whether or not there is power for the inspector general to initiate his or her own investigations into CBSA actions or policies. The bill has provided many indicia of independence, such as tenure of the inspector general, the mandate, and creating offences regarding obstruction of a complaints investigation. CCLA has long called for the power of self-initiated review as being an essential component of independent and effective accountability for such a powerful agency. This would allow in addition systemic review of the CBSA's actions and policies, which we think is vital.
The second thing which may be absent is the important component of effective accountability for Canada's security and intelligence agencies. In this regard, we must address the siloed review processes currently in place in Canada.
Bill S-205 is an important improvement. It provides a monitoring and review process where none has existed; however, we must ensure as well that the creation of any mechanism, such as the inspector general, is also set up to work with a few other existing accountability mechanisms — for example, SIRC and the CRCC — and importantly with any new national security accountability framework introduced by the government. Expanded, integrated, robust, multi-pronged review is needed in Canada in 2016. Thank you very much.
Julie Taub, Immigration lawyer, as an individual: Good afternoon. Thank you for having me here. I have been here before.
I'm taking this opportunity to not support this bill as it exists for totally different reasons. I'm looking at it from the perspective of CBSA's mandate, which I hope was handed out. I'm not sure if it was. I provided it in French and English. That is to protect Canada's security and prosperity by controlling the admission of goods and people into Canada.
In today's climate, with unprecedented levels of security threats and challenges of all kinds, be it cyberattacks, commercial and high-tech espionage, I'm concerned that CBSA is not able to perform its mandate effectively because of a lack of resources, a lack of training and a lack of manpower. Those should be the priorities here right now rather than creating a position of a director general for complaints. The CBSA already has a complaints process in place. It should be with you, but they have a section called "recourse'' which provides individuals to write a written submission if they disagree with an enforcement action or a program decision made by CBSA or wish to submit a complaint or compliment about services. There are a complaint, a use of force, an incident reporting provisions. It applies to the general public, as well as members of other assisting police agencies. This is already in place.
While it may be advisable to create another position for independent review, this is not the time to do so, not in today's world. For example, just last week, May 11, CBS New York broadcast a piece entitled "Canadian Border Presents Its Own Security Concerns for the United States.'' "We see alien smuggling, narcotics smuggling, currency smuggling. Our primary mission, of course, is to stop a terrorist. Some spots could be easy points of entry. There are radicalized groups in Canada. That is of tremendous concern to us,'' said Bradley Curtis regarding terrorist threats. They said Canada's more open-door policy towards Syrian refugees is also of concern.
In the last year, American agencies seized more than 10,000 pounds of marijuana and a million dollars in illegal currency coming into the United States. They've also stopped shipments of a variety of illegal guns. We've actually been asked to double the manpower. This is simply on the northern border they're talking about. They have 300 agents covering 300 miles, including a large Indian reservation that's an attractive route for smugglers.
We need more CBSA agents on the front line. We need them to deal with internal fraud, immigration fraud, the threat of terrorism, the threat of cyberattacks, and the importation of goods and services. The list goes on and on. I have provided the table of contents which actually lists all of their duties. They are understaffed. Unfortunately there was a 5 per cent cut in CBSA front-line agent staff under the previous government. Most unfortunate. Instead of cutting it by 5 per cent, they should have increased it by at least 20 or 25 per cent. There are backlogs.
There was another article in the newspaper regarding a former client of mine, marriage fraud. This is way low down on the list for CBSA priorities, but it facilitates immigration fraud. That is a concern to all of us, not just to the duped sponsor.
I was involved with another lawyer, Chantal Desloges, from Toronto when we did a class action lawsuit for mandamus against a minister in 2008. We represented a group of 500 duped Canadian or permanent resident sponsors.
CBSA, immigration does not have the manpower, does not have the resources to deal with immigration fraud. Presently there is a two-year residency requirement for sponsored spouses. That will be dropped. The floodgate will open for immigration fraud with sponsored spouses in the near future. The government plans to drop the visitor visa requirements for Mexicans. That will again open the floodgates for questionable refugee claims and drug dealers. They can hop on a plane, come up and set up their business here.
So I believe the CBSA will be overwhelmed with what will be happening in the near future. They're overwhelmed now because it takes them three years to investigate immigration fraud.
Then there was the issue of the Auditor General's report, fraud in obtaining citizenship. That's what she reported. Not enough resources to deal with fraud. People with criminal records were getting citizenship. People who hadn't fulfilled the residency requirements were getting citizenship. Why? Because we don't have adequate resources.
In the alternative, if you're going to create this position of director general, then let it be twofold, one to deal with complaints and one to deal with whether CBSA can adequately deal with all the tasks and responsibilities and duties it has been assigned, whether it has sufficient resources, whether it has sufficient manpower, whether it has sufficient training. At this point it does not for any of its responsibilities.
The Chair: Thank you, Ms. Taub. Mr. Waldman?
Lorne Waldman, President, Canadian Association of Refugee Lawyers: Honourable senators, I've had the opportunity to appear before the Senate on many occasions, but I'm particularly looking forward to appearing today given the new role that the Senate is expected to play in our constitutional order. I look forward to engaging with the senators on this and many other issues of importance to our country.
It's an honour to appear before the Senate on behalf of the Canadian Association of Refugee Lawyers. I'm a member of the executive and past president of the organization. Our members represent persons who come into frequent contact with CBSA officials and who, due to their experience, are particularly vulnerable to abuse.
While most officials treat our clients with respect and consideration that one would expect from an official of the Government of Canada, there are many serious exceptions. I could cite many examples, but given the time, I will not.
The CBSA was formed in the aftermath of 9/11, and at the time no consideration was given to the need for oversight. But 15 years later the time has come to remedy that error. CBSA officers, as my colleagues have already said, have broad ranges of powers of arrest, detention, search and seizure. These powers are exercised by thousands of operators operating across the country. Many of them don't have nearly the same amount of training that one would expect from an RCMP officer or police officer engaged in the same type of work. Without oversight and review, there's a lack of accountability, and that gives officers a sense of impunity. The rule of law requires that all those who hold compulsive powers must be held responsible when they commit excesses.
Just to briefly comment on what my colleague previously said, the issue of whether or not CBSA has sufficient resources is a separate issue from the question of accountability. Here today we're dealing with the fact that in a society that respects the rule of law, any person who exercises coercive power must be subject to an accountability mechanism.
The problem we confront today, one that is very serious and has to be remedied by this government as soon as possible, independent of concerns about resources, is the problem of ensuring that CBSA officers are held accountable for any excesses that they commit. That's one vital role that will be played by a public accountability mechanism.
I don't think it's necessary for me to repeat the points that were made. I agree with all the comments of the first two speakers. In terms of initiation of complaints, there has to be a mechanism that allows third parties and the inspector general himself to initiate complaints. Indeed, in terms of what my colleague just said, the last speaker, the inspector general, if he sees serious deficiencies in the CBSA, can report on those deficiencies.
One point that perhaps wasn't as emphasized as much by the first two speakers is that the powers of the complaint body must be sufficient to ensure that they have the capacity to conduct investigations. They have to have full powers of subpoenaing records, summonsing witnesses and holding public hearings when it is necessary to do so. In the event that their subpoenas are not being respected or there are unreasonable delays in the provision of material, they have to have compulsive powers to ensure their demands are respected.
They have to be able to look at and initiate reviews of systemic issues. They have to have the power to make binding recommendations subject only to override by the minister, and they have to have sufficient resources in order to carry out their job. One of the chronic problems we see with SIRC and other oversight agencies is that they don't have sufficient resources.
The only other comment I would make, echoing the second speaker from the Canadian Civil Liberties Association, is that we have to consider how this new institution would interact with existing organizations that conduct oversight, particularly in cases involving national security and sensitive information and the fact that information often goes among various different agencies subject to different oversight mechanisms. We support the notion that there would be one super agency that would oversee all national security investigations.
Those are my brief remarks. Thank you very much.
The Chair: Thank you, Mr. Waldman.
Senator White: Thanks to the witnesses here and elsewhere. If I may, Mr. Waldman, I guess we're dealing with one of the largest police organizations in this country over the past decade, certainly one of the fastest growing with the greatest number of increased powers, and yet also one of the largest police agencies in this country that has absolutely no oversight external to itself. Every police agency has internal oversight, whether it's professional standards or investigative.
If you were to build this, what would you do differently in this piece of legislation today, particularly focusing on when the inspector general doesn't have agreement from the President of the CBSA?
Mr. Waldman: You're talking about in terms of —
Senator White: Like the RCMP Commissioner can refuse to acknowledge a response from the external review, as an example. What would you do differently?
Mr. Waldman: Ultimately, the key point is, at the end of the day, when the inspector general, or whatever oversight mechanism is created, comes to a conclusion, submits it to the CBSA, if the CBSA doesn't agree, the inspector general has to have power to insist that the recommendations are complied with. It has to be a mandatory recommendation, of course subject to override by cabinet or the minister.
That's the weakness in the current complaint mechanism at the RCMP, and it really undermines, to a certain extent, the effectiveness of the complaint mechanism. When you couple that with the notion of sometimes the recommendations aren't fully public because of national security considerations, then it really undermines the effectiveness of the accountability mechanism.
Senator White: Thank you. We've heard from some other witnesses about I say minor amendments, because realistically we're at that point where we could make amendments, easily changing some things in this piece of legislation. Do you see any reason why this would not be a good move for CBSA overall but also for the Canadian public?
Mr. Waldman: It's funny, when you speak to officials at CSIS and they talk about oversight, the first thing they say, in the context of SIRC, was it was the best thing that ever happened to them. By having SIRC come and make the recommendations, it held them accountable and allowed them to improve the efficiency and effectiveness of their organization. Although there was initially resistance, now any senior official at CSIS was supportive of oversight, and I think the same process will occur here.
Clearly I would expect that many CBSA officers don't want it because they are concerned that it would affect their ability to do their jobs, et cetera, but in the end I'm confident that once it's in operation they will see the wisdom of having oversight.
Senator Jaffer: Thank you to all of you for all of your presentations today.
I want a clarification from you, Mr. Waldman. You talked about a super SIRC. We are looking at an oversight with the inspector general under this bill, but what do you envisage as super SIRC? Would there be individual people looking after CBSA, RCMP, or you tell me what you are thinking?
Mr. Waldman: Commissioner O'Connor, at the time of the Arar commission, looked at the oversight of national security agencies, which included RCMP, CBSA, CSIS, and recommended that there be one agency, because of the particular nature of national security investigations where there was overlap where things shifted from one agency to another — a lot of times it starts with CSIS, moves to the RCMP, and CBSA and the local police may be involved — and that there be one agency that has the power to oversee all of those.
If that agency is created, then there would have to be a way to ensure that the oversight mechanism for CBSA operates efficiently and with oversight of national security matters.
Senator Jaffer: I have a question for the Canadian Council for Refugees. My question is that refugees are desperate people, vulnerable people, who often don't have language skills, and today we heard from the Canadian Human Rights Commission that they don't have rights to go to the Canadian Human Rights Commission because they're not here legally. They are the most vulnerable people ever. They're not criminals. They have challenges and they have fled.
One of the things I have been thinking a lot of is gender guidelines, as we have in the refugee process. We should have some kind of sensitivity training and certainly something in place so that if a woman is detained — I'm thinking of the case in Vancouver where she was suffering from violence, she fled from it, and then in the end she had such a terrible death. I'm looking at ways in which we can make people who detain such vulnerable people more aware of the challenges the special people face in detention centres.
Can you expand on that, both you and Canadian Civil Liberties Association, as to what you think?
Ms. Jeanes: Thank you for your question. It raises some important points.
Indeed, refugees are some of the most vulnerable migrants coming to Canada, and those who are in detention are subject to many different kinds of powers at once, powers of arrest, detention and ongoing investigation. You raise an important concern that there is not necessarily any view of their vulnerability during that process.
We hope there would be the possibility of recommendations that could require something built in, where officers would need to be alert to those issues and acting responsibly.
Ms. Dench: To go back to the time when the CBSA was first created and the powers were separated between immigration and CBSA, one of the controversial points to our organization was the fact that when a refugee claimant comes and arrives at the border, they make their claim to a CBSA official. So we have officials who are, on the one hand, doing police-type work, enforcing the law, and yet they're the ones to whom somebody has to come and explain their need for protection. Then you have CBSA, who is armed, so you have to ask a refugee claimant to go and tell their story to a police officer-type person who is armed.
You make a very good point about the need for sensitization, and I know that CBSA does work at that at various points. It is very difficult for officers to keep that balance always in their daily work.
Ms. Jeanes: I would like to add that the powers are quite broad and far-reaching. So somebody who is arrested and detained, whether it is for a day, weeks or months, even when they're released, CBSA has the power to, for example, intervene in their refugee claim and recommend it be refused, drawing on interrogations where lawyers were not present and that were not recorded.
They have the power to impose extremely strict conditions and accelerate removal, if the person is refused. It can extend to many areas of a person's time in Canada.
Ms. Pillay: Thank you, Senator Jaffer, for that important question.
I echo what my colleagues have just said. There are international standards that are applicable, particularly with respect to conditions of detention, separation of families and mental health. You did refer to federal human rights legislation, which may not be applicable. I would like to point out that of course the Charter of Rights and Freedoms would apply, and the standards there must apply as well to people who are not yet Canadians or who are not Canadians.
The third point I would like to make is that the questions that you have raised and the powers of the CBSA, not only to arrest and detain but to be involved in any process of status determination, in my view further underscore the need for any office, such as the inspector general, to be able to initiate their own investigation of such systemic questions. This is crucially important. Our recommendations to police forces elsewhere for training with respect to profiling issues and/or Charter rights, the same sort of training could apply to CBSA officers.
[Translation]
Senator Carignan: My question is for the representatives from the Canadian Council for Refugees, and for Ms. Pillay from the Canadian Civil Liberties Association.
A rather specific problem has been raised that has been an ongoing issue for several years, namely the detention at the border of persons waiting for a decision as to whether or not they have the right to enter Canada. I would think that the very moment when people arrive in Canada is the most crucial time to respect human rights. Cases of abuse and death have been reported in the media. The inspector general is being given a much broader mandate and this part of the problem is a negligible part of that mandate.
In light of the limited resources and time available, are you not concerned that giving the inspector general such a broad mandate to review all the activities of the Canada Border Services Agency will limit his or her role or concerns regarding his or her investigations into or monitoring of detentions at the border of persons awaiting a decision on their case? Am I being clear?
Ms. Dench: Thank you for that question. Unfortunately, I was getting the translation and was unable to hear directly what you said in French.
If we understand the question, you are referring to how broad the CBSA's mandate is. I believe we are still going to ask that the inspector general focus on the most fundamental rights, the most serious violations, and on the most vulnerable people. From our point of view, when we are talking about serious violations we mean the detention of people who are seeking refugee protection in Canada. The most vulnerable are refugees and non-status migrants. If we had to plead our case, we would ask the inspector general to focus on those aspects.
Ms. Jeanes: Thank you for drawing attention to the ports of entry at the border. Those who are the most vulnerable are not always able to enter Canada. They are sometimes turned away at the port of entry. We do not always know what those people are seeking because it is impossible for us to communicate with them. We know that some people make unauthorized refugee protection claims. Those people are turned away on the spot. We have received messages from people who have gone through similar experiences. Unfortunately, by the time those situations were brought to our attention, those people were already gone. It would be very important to look at this issue at length. We will wait and see what happens in terms of power and priorities. Thank you for the question.
[English]
Ms. Taub: What we're looking at is balancing priorities in this case. Yes, there is the issue of vulnerable people and refugee claimants, but on the other hand, there is the issue of Canada's security against all kinds of existential attacks from terrorism, cyberattacks, human trafficking, and the list goes on. It is endless.
When we are competing for scarce resources, we have to determine where our priorities lie. When we look at it from an objective point of view, I do believe that the priorities should be on Canada's security, protecting citizens and immigrants who are living here, protecting them against immigration fraud, protecting them against criminals, protecting them against terrorist attacks, et cetera, if we are competing for the same resources.
If we have sufficient resources to tackle both issues with this position, then of course we should. If we can only deal with one issue at a time, I come down on the side of security because our lives are at stake; our well-being is at stake; Canada's future is at stake.
It is all a matter of resources.
Mr. Waldman: I have a brief comment on that comment.
The Chair: We are not here to debate with the witnesses, nor between the witnesses. It is a question of dealing with the issue and the bill that is before us.
Mr. Waldman: I will just answer the senator.
It seems to me that when we deal with the question of resources, any complaints commission or inspector general has the possibility of determining how to deal with specific complaints and can prioritize some over others.
I would suggest that an inspector general would obviously prioritize those complaints that are more serious and engage fundamental rights like detention over other complaints, but clearly in any society, whether as a rule of law, we have to ensure that there are accountability mechanisms that deal with all the various activities of the CBSA.
Ms. Taub: I will make a point of clarification. Would the inspector general be able to deal with complaints from Canadian citizens and immigrants in a matter such as marriage fraud? If they submit a complaint and no investigation is made because it is so low down on the priority list due to lack of resources, would the inspector general be able to deal with such complaints as well?
The Chair: Senator Moore may have more to say about that, but section 15 allows a lot of latitude for the inspector general to inquire into any issue and raise that issue, what one might determine is not a priority, but it becomes a priority because it has come to his or her attention to follow up and to deal with a complaint.
That is one of the pluses with this legislation, the way I view it, from the point of view of the way it has been written.
[Translation]
Senator Dagenais: Thank you, Mr. Chair. My first question is for Ms. Dench. We are all very concerned about what happened to some individuals when they were detained by the Canada Border Services Agency. Do you believe that appointing an inspector general, as provided for in Bill S-205, will help change the attitude of those who are afraid to file a complaint?
Ms. Dench: In our recommendations, we propose that the inspector general, or any other mechanism, be able to receive complaints from organizations. Our organizations and CCR-member organizations are often well-positioned to file a complaint with the inspector general. The latter could conduct visits and determine which situations should be inspected. In our opinion, a system that is all about filing complaints does not work for the most vulnerable.
Senator Dagenais: With your permission, Mr. Chair, I would like to ask Ms. Taub a question. I listened to your presentation and the picture you painted gives us cause for concern. The government has been quite open when it comes to immigration, but maybe it doesn't have the means to match its ambitions. In your opinion, is the government misleading those wanting to come to Canada?
[English]
Ms. Taub: I'm sorry, I did not understand.
[Translation]
Can you repeat the question and speak a little louder? I didn't really understand your question.
Senator Dagenais: The picture you painted gives us cause for serious concern. You painted a dark picture of immigration. I think the government is showing the international community that it is open to immigration. Do we have the means to match our ambitions when it comes to immigration? If not, are we misleading those wishing to immigrate to Canada?
Ms. Taub: You want to know if the Government of Canada is being misleading by claiming that it is easy to immigrate to Canada?
Senator Dagenais: In other words, the government is very open to immigration, but when people try to come here it may not be as easy as they think.
Ms. Taub: It is very easy to immigrate to Canada if one is qualified and can meet the necessary criteria. In my opinion, it is much easier to immigrate to Canada than any other western country. It is not misleading, but someone who is immigrating has to meet the requirements and satisfy Canada's needs. In an immigration situation, the country has to benefit too.
Senator Dagenais: Exactly.
Ms. Taub: The country has to benefit from immigration. We are not talking about the refugee system, which is a whole other issue. When it comes to basic immigration, Canada has to be able to benefit from bringing in a certain category of immigrants. For that to happen, the immigrants have to be educated, know French or English, and have the necessary know-how to succeed in Canada without relying on social assistance. Of course, all those criteria are very important, but I do not believe that Canada is being misleading. Even with those requirements, it is not hard to enter Canada if one has the skills, education, and knowledge of the necessary languages.
Senator Dagenais: Looking at the chart you presented at the beginning, I was under the impression that it might be hard sometimes to enter Canada, given the staffing shortage at border services and so forth.
Ms. Taub: There is no doubt that the staffing shortage is causing problems when it comes to investigations, fraud, and family sponsorship. The shortage in staff, resources, and funding is causing delays.
[English]
The Chair: I would like to follow up on Ms. Taub and ask other witnesses to make some observations. Over the course of our hearings over the last number of years, we have learned a number of facts about immigration.
On the average — and I don't think most Canadians are aware of this — 500,000 new arrivals come into this country every year from the point of view of immigration, as temporary workers, university students and refugees, if you take all those categories. That's a huge influx of people. Each one is an individual; each one has to be dealt with in a manner that, hopefully, makes this place a great place to work or a great home in the long term.
The fact is that's how many people we're bringing into this country. Knowing that, and knowing there's a public security question that comes with this in respect to the responsibility of the CBSA — and I don't think anybody can argue this — my question is, with your knowledge, your backgrounds and your organizations, do you agree that for the job that we're asking the CBSA to do, they under-resourced? If you feel that way, what do you think has to be done so that they can do the job we're asking them to do?
Mr. Waldman: There is a question of allocation of resources. Undoubtedly, there have been cutbacks, and fewer officers are doing more work than, say, 10 years ago for sure. The government has diverted huge amounts of resources for removals over all sorts of other aspects. I believe that CBSA needs resources to do its job effectively, but it also needs to determine how to best allocate the resources and prioritize those matters that are most important over those that are not.
For sure, CBSA has a huge task and needs the necessary resources. I don't think anyone disagrees with that. But also, CBSA has to ensure that when they allocate their resources they allocate them in the manner that's appropriate. That's why I think that fits with this type of inspector general because an inspector general will have the ability to look at how CBSA engages in its operations, at how they allocate the resources and at whether they're allocating them properly in order to do their job correctly.
The problem we have now is that there's no public accountability for anything that CBSA does. That really makes the organization less effective and efficient and also less accountable.
Ms. Dench: I will continue in the same line as Mr. Waldman. It may be that CBSA is under-resourced in certain areas, but from what we hear from our members, it certainly seems that CBSA has too many staff in some areas and is intervening in ways that are not helpful.
We hear, for example in some areas where there is as much as half of the refugee claims, CBSA is intervening and making not helpful interventions against the refugee claimants. There's also the tremendous waste of resources in terms of cessation applications, which is trying to take away refugee status from people who are contributing permanent residents in Canada.
Certainly a huge amount of money is spent on detention of people who represent absolutely no threat to Canada — people in many cases who go on to be recognized as refugees and become permanent residents and citizens of Canada.
We would agree that there needs to be some reallocation of resources within CBSA.
Ms. Pillay: Thank you for the opportunity to comment and for the question, senator. To answer your question, the CCLA would completely agree with you that security is an important and primary function of the CBSA. However, in our view, the accountability that is envisaged by Bill S-205 and the other recommendations that we make to take that accountability further does not in any way undermine that security function. In our view it would enhance the security function and ensure that CBSA is best placed to do the job correctly.
With respect to whether CBSA is under-resourced, I would agree it is, from what we know. Our point is that accountability and resource issues like security should not be pitted against each other. They go hand in hand in making sure that we keep Canada safe and fulfill our obligations toward refugees, migrants and immigrants.
The Chair: I appreciate your comments on this because I think there is a common-sense feeling here. There is a feeling that they are under-resourced and steps have to be taken to rectify that. When you look at the number of people coming into our country in any given year, it is the size of a big city — 500,000 people. That's a lot of new people coming into this country. We have to be able to accommodate that, make sure they work through a system that works and make sure they're treated fairly while at the same time Canada's interests are taken care of.
It's a fine line we walk here. We can't talk just about one element. We have to talk about all elements of it. We have something like 40,000 or 50,000 individuals that have been identified that are in this country, and we don't know if they're here. We don't even know who they are. That has to be a concern.
It just continues on. It's a balance we have to reach. I agree with you on the question of accountability. That's why this bill is here.
Senator Jaffer: I have a question for Mr. Waldman and Ms. Pillay. Last year the committee had a report on vigilance accountability and security at Canada's borders. The report set out how the CBSA disregarded the rights of refugee claimants, took away their phones and used their phones to get contacts. For me the worst thing ever was to contact authorities in their country of origin.
What I am pleased about both in this bill and in the mandate is that proposed section 15.5(1)(a)(vi) says "the respect for and protection of individual rights and freedoms of Canadian citizens and foreign nationals.''
This would be a big step in protecting the rights of those who are the most vulnerable. I would like your comments on that. Do you think it goes far enough?
Mr. Waldman: It is vital that there be accountability because, as I said in my opening remarks, in our practice we see very often instances of where we think officers are violating our clients' Charter rights, and we have no effective complaint mechanism. We write a letter, it goes into a void, and more often than not we don't get a response.
By introducing a bill that allows for a complaint mechanism that will investigate, report and make mandatory recommendations, that will lead to more respect for Charter rights.
Ms. Pillay: As you know from our previous submissions to you and to this committee, we have also documented instances of alleged abusive practices such as taking the phones or contacting somebody in another country, which obviously puts an asylum-seeker in great peril. We think the complaints mechanism is absolutely essential.
To answer your second question, does Bill S-205 go far enough, we would say there should be a self-initiated investigation mechanism, which may or may not exist. It wasn't clear from the wording of the bill, but we think that is essential as well.
Senator White: Thanks to all of you for being here. It is interesting when we're trying to decide whether or not decreased trust is possible when we talk about security. I would argue that without trust there is no security.
Mr. Waldman, we had a discussion previously with the oversight body for the Royal Canadian Mountain Police about whether they can take up the role we're suggesting here of the inspector general. A lot of the investigations that the CBSA and RCMP are involved in now, even more so than a decade ago, are cross-cutting. I thought it might make for quicker work and easier access to investigative material. Do you support that, or would you see some concerns with that?
Mr. Waldman: It's vital that there be an effective oversight mechanism. All three witnesses who spoke about the issues agree as to what issues are missing.
I personally have no concern about it being done through the RCMP complaints commission, but there are serious limitations now on the ability of that commission to conduct investigations. Those would have to be corrected in the manner we discussed.
Senator White: Could you touch on those areas?
Mr. Waldman: Well, the ability to enforce the recommendations is crucial. The ability to actually get access to the material is crucial. The complaints commissioner said if we ask for it and they don't get it, we can't conduct our investigation. There have to be enforcement abilities, the ability to initiate complaints on their own, and they have to be able to receive them from third parties. Those are crucial aspects of any effective complaints mechanism.
[Translation]
Senator Carignan: My question is for the lawyers. Regarding the legal recourse before Federal Court under sections 15.21 and following, which allow a complaint presented to the inspected general to be referred to the tribunal, I cannot understand the role of this legal recourse.
It seems that if I were in favour of human rights, I would like to benefit from a much more specific recourse, equipped with tools, specific grounds for review, and more specific powers than the one whereby the tribunal may, if it feels that the agency did not comply with this statute, grant restitution if it deems so necessary. The agency's obligations under the legislation are quite limited and do not include the substance or the content of the recommendations being made. If I wanted to protect the agency from recourse, it seems to me that I would get rid of this provision in order to maintain the effectiveness of the agency. I would leave the power to make recommendations and file reports to the inspector general. I would think that would be enough to achieve the objective of sparking public opinion and making the agency and the minister aware of the agency's internal problems.
Don't you think that as currently worded, the legal recourse will not achieve any of these objectives, not of protecting human rights, nor of protecting the primary mandate being given to the inspector general?
[English]
Mr. Waldman: I don't know if one of my colleagues in —
The Chair: Who is prepared to jump in on this?
Mr. Waldman: I've read the provision and I think the purpose of the provision, as I understand it, is to allow a complainant to go to court if he feels the inspector general fails to take action within a reasonable time and to ask the court to issue a direction to take the action.
The purpose of this provision is important because it's a safeguard against the inspector general not taking action. That's the purpose. There may be more effective ways of dealing with it, but it's important that there be a check on the power of the inspector general which allows him to go to court.
[Translation]
Senator Carignan: Is that how you interpret the power, as drafted?
[English]
Mr. Waldman: That's the way I read it, yes.
Ms. Pillay: I think it mirrors the provisions of the federal privacy legislation as well.
The Chair: Senator Carignan, are you satisfied?
[Translation]
Senator Carignan: It is not about whether or not I am satisfied.
[English]
Senator Moore: Thank you to the witnesses for being here.
The CBSA operates at least four prisons in Canada operated by contracted staff. There have been deaths. There was another one just yesterday. These are not reported. Relatives of the deceased have had to go to great lengths to try to find out information about the circumstances. I think they end up in the final announcement going to a coroner's office.
Ms. Taub, you say this is not the time for an independent officer. In view of all that, if not now, when?
Ms. Taub: When we have the resources to satisfy both urgent needs in Canada. I'm not saying that we should not proceed with an inspector general; I am saying it has to be twofold. One cannot go without the other.
Secondly, I happen to agree with my colleague that if we do combine it with SIRC, it would be a more financially, economically sound approach to deal with this. Since the three bodies — CBSA, CSIS and the RCMP — often work together, interchange and exchange information, there could be one body rather than a specific one for the CBSA. Perhaps it would be a better allocation of scarce resources that way.
Senator Moore: I'm obviously advocating that we have an independent inspector general for all the reasons that I've mentioned, particularly that justice be done and appear to be done, that we do have an independent third party looking at the operations and actions of the CBSA.
Ms. Dench, I have your speech before Regis College in November 2013 in Toronto. I'm going to ask you to expand on this. You said:
It seems to me that there comes a point where silence descends on those who have been in immigration detention too long, on those who have been separated from their families too long, on those who have lived in limbo too long. It is a point beyond rage — a point where something has been broken — where no setting free, no reunion, no status documents will compensate, where the relief of a resolution will go no way towards healing the wound.
Would you comment on that, please?
Ms. Dench: Thank you very much. What I was talking about was the fact that there is so little remedy available for people. They wait for such a long period. For example, if you're in detention for a short amount of time and you can find some remedy for it, then obviously you can repair the wound that was done. However, the longer the ills go on, the longer you suffer family separation, the longer you go on without status, the deeper the wound and the harder it is for it to be repaired and also for people to even talk about it, to communicate with Canadians. That's one of the points I was trying to get across, how we in Canada, with often a very optimistic view of how we respect other people's human rights, are ignorant of how just a few miles away from us many times there are people living through serious abuses of their rights.
Senator Moore: Thank you. Ms. Jimenez took her life on December 20, 2013, a month after your speech. Were you at all involved in pursuing that in trying to help her family? Did your organization get involved in that case at all or in others similar to that?
Ms. Dench: Yes, we certainly joined with other organizations in calling for there to be an inquest, and then we also intervened at the inquest. We had a lawyer present to ask questions and make recommendations at the coroner's inquest.
Senator Moore: I'll leave it there. Thank you.
The Chair: Colleagues, we've come to the end of our time. I want to thank all the witnesses for coming here before us today. I think it has been very worthwhile. We appreciate the time and effort you take, each and every one of you, to prepare so that we have the opportunity to hear your expertise. You can rest assured that you have not gone unheard.
I will excuse our witnesses, and we are now adjourned.
(The committee adjourned.)