THE STANDING SENATE COMMITTEE ON NATIONAL SECURITY, DEFENCE AND VETERANS AFFAIRS
EVIDENCE
OTTAWA, Monday, October 7, 2024
The Standing Senate Committee on National Security, Defence and Veterans Affairs met with videoconference this day at 4:03 p.m. [ET] to consider Bill C-20, An Act establishing the Public Complaints and Review Commission and amending certain Acts and statutory instruments and, in camera, to consider future business.
Senator Tony Dean (Chair) in the chair.
[English]
The Chair: Good afternoon, senators. I call this meeting in session.
Before we begin, I would like to ask all senators and other in‑person participants to consult the cards on the table in front of you for guidelines to prevent audio feedback incidents. Thank you for your cooperation.
Welcome to this meeting of the Standing Senate Committee on National Security, Defence and Veterans Affairs. I’m Tony Dean, a senator from Ontario and the chair of the committee. I’m joined today by fellow committee members, and I’ll ask them now to introduce themselves, beginning with our deputy chair.
[Translation]
Senator Dagenais: Jean-Guy Dagenais from Quebec.
[English]
Senator Dasko: Donna Dasko, senator from Ontario.
Senator Richards: Dave Richards from New Brunswick.
Senator Patterson: Rebecca Patterson from Ontario.
Senator Yussuff: Hassan Yussuf, Ontario.
Senator Al Zaibak: Mohammad Al Zaibak, Ontario.
Senator M. Deacon: Marty Deacon, Ontario.
Senator McNair: Welcome. John McNair, New Brunswick.
Senator Omidvar: Ratna Omidvar, Ontario. I’m not a member of this committee but the sponsor of the bill.
Senator Boehm: Peter Boehm, Ontario.
The Chair: To my left is Ericka Paajanen, the very able clerk of the committee, and on my right is Ariel Shapiro, who is our Library of Parliament analyst.
Colleagues, today we continue our consideration of Bill C‑20, An Act establishing the Public Complaints and Review Commission and amending certain Acts and statutory instruments. We are hearing from three panels of witnesses who will share their insights on this bill.
In this first panel, I’m pleased to welcome Mr. Mel Cappe, Distinguished Fellow at the Munk School of Global Affairs and Public Policy. Some of you will recall that Mr. Cappe is the former Clerk of the Privy Council, the former head of the public service and was Canada’s High Commission in the U.K. for four years.
Joining us from the National Police Federation is Brian Sauvé, President and Chief Executive Officer. And from the Customs and Immigration Union, by video conference, we’re joined by Mark Weber, National President. Thank you all for joining us today.
We now invite you to provide your opening remarks, to be followed by questions from our members. I remind you that you each have five minutes to present. We’ll begin with Mr. Cappe. Whenever you’re ready, please proceed.
Mel Cappe, Distinguished Fellow, Munk School of Global Affairs and Public Policy, as an individual: Thank you, Mr. Chair. As you noted, I teach Masters students in global affairs and public policy at the Munk School in Toronto, but I spent 30 years in the Government of Canada as a senior official. I was deputy minister in several departments and clerk of the Privy Council, as the chair noted, from 1999 to mid-2002.
I had first been appointed to the rank of deputy minister by Prime Minister Mulroney, and I served as clerk to Prime Minister Chrétien. There is a point to that, which is that I spent my career in a non-partisan fashion.
[Translation]
After spending five years in Montreal as CEO of the Institute for Research on Public Policy, I was approached by a director general at the Department of Public Safety to prepare a report on the lack of capacity for scrutiny at CBSA.
[English]
In June of that year, I delivered a report to the department. Perhaps because I had spent four years in the U.K., I called it Mind the Gap. The point is there was a gap in the review process and capacity. I had interviewed over 50 individuals, including former Supreme Court Justices, heads of agencies, deputy ministers and members of the public, including some ethnic minority groups. I proposed that there should be a review agency of the Canadian Border Services Agency, or CBSA, and that it should be related to and have relationships with the review of other security agencies like the Royal Canadian Mounted Police, or RCMP. I proposed structuring it to balance the public’s right to security and the individual’s right to privacy by respecting the need for secrecy and coercive action, with indirect accountability to an independent review agency.
When Bill C-20 was introduced, I believed it was a very good start in that direction. It did not do everything I wanted; however, since we are already seven years from my report, I felt then and strongly feel now that passing Bill C-20 will significantly improve the review process for CBSA, and in that process, improve the operational effectiveness of the Canada Border Services Agency.
Do not let the perfect be the enemy of the good. Senators, I know that you’re dealing with that all the time in trying to make a judgment about what to send back and what not.
[Translation]
I am pleased to answer your questions, but I should point out that seven years have gone by since I studied this issue, and my memory is not as sharp as yours.
Thank you.
[English]
The Chair: Thank you very much, Mr. Cappe. Next we will hear from Mr. Brian Sauvé of the National Police Federation. Please proceed when you’re ready.
Brian Sauvé, President and Chief Executive Officer, National Police Federation: Thank you for inviting me to speak today. As mentioned, my name is Brian Sauvé. I am the President and CEO of the National Police Federation, or NPF, the union representing nearly 20,000 members of the RCMP in Canada as well as worldwide.
We recognize the essential role civilian oversight plays in maintaining public trust. The NPF has long supported ending the practice of police investigating the police, and Bill C-20 presents a crucial opportunity to address this issue. The bill could create a more independent and fully resourced public complaints and review commission, which we believe is one key to enhancing public confidence in law enforcement.
While we appreciate the amendments proposed by the House of Commons Public Safety and National Security Committee, particularly recognizing the NPF’s role during the complaints process, there remain concerns about the resources allocated to this body and the timelines involved in investigations.
Today, I will outline four recommendations for improving Bill C-20:
First, clarifying the definition of “third party” complaints. The current amendments to subclauses 33(1) and clause 35 allow “third parties” to file complaints and receive assistance. However, the term “third party” is not clearly defined. It is unclear who qualifies as a “third party,” the circumstances under which they can receive assistance or what it means to be “directly concerned” with a complaint. This ambiguity could lead to resource misuse, with the commission receiving frivolous complaints, worsening its already-strained resources.
We recommend clarifying whether “third parties” refer to individuals, organizations or both. Additionally, the commission should have the discretion to decide whether to assist a third party with a complaint, aligning with other provisions that allow for discretion in resource allocation.
Second, restoring the one-year complaints timeline. Bill C-20, as it stands, extends the complaints timeline from one year to two years. Given the commission’s current resource challenges, this extension could delay investigations and make it harder to gather accurate information due to memory degradation. The current process already allows for extensions in exceptional cases. Restoring the original one-year timeline, with extensions only when necessary, would ensure investigations are timely and more reliable.
Third, reconsidering the blanket prohibition on non-disclosure agreements. Clause 35.1 introduces a complete ban on non‑disclosure agreements, or NDAs, for complaints under the act. This blanket approach may create unintended consequences in other proceedings and could lead to more complaints going to hearings, further burdening the system. We recommend amending this section to:
A) allow for existing NDAs from other proceedings to remain enforceable.
B) permit parties to keep privileged information confidential, and
C) allow confidentiality for financial aspects of settlements.
This approach would strike a balance between transparency and practicality while preventing the unnecessary strain on limited resources.
Lastly, ensuring the full independence and resources of the proposed public complaints and review commission, or PCRC. We believe Bill C-20 presents a unique opportunity to strengthen civilian oversight of law enforcement in Canada by ensuring the PCRC is fully independent. The government has consistently promised increased transparency in law enforcement, and this bill should reflect that commitment. The PCRC must be equipped with the resources and ability to conduct its own investigations independently, free from political influence or the perception of conflict or bias.
To be effective, these changes need to support informed, fair and timely investigations that meet the public interest. A fully independent PCRC will ensure greater transparency and accountability within the law enforcement community and with Canadians.
Thank you for your time, and I look forward to any questions.
The Chair: Thank you, Mr. Sauvé. Finally, we will hear, on behalf of the Customs and Immigration Union, Mr. Mark Weber. Welcome back, Mr. Weber. Please proceed whenever you’re ready.
Mark Weber, National President, Customs and Immigration Union: Thank you, Mr. Chair.
Mr. Chair and members of the committee, thank you for inviting me to appear before you today. As National President of the union that represents the personnel of the Canada Border Services Agency, I have been following Bill C-20 with great interest and I’m happy to have the opportunity to comment on this legislation once again.
When this bill was first studied in the House of Commons, the Customs and Immigration Union highlighted several areas of concern to the Standing Committee on Public Safety and National Security. While the union is pleased that the committee went on to propose a number of amendments to address these concerns, several issues remain; chief among them is the need for legislation to ensure that our members can avail themselves of the recourse offered by the PCRC.
Before I talk further about amendments to Bill C-20, however, I’d like to take a moment to highlight the importance that this bill plays in cementing the role of the CBSA officer as public safety personnel. The oversight proposed by Bill C-20 is certainly consistent with the role of CBSA officers as law enforcement officers, confirming their place within our country’s public safety framework. It is not consistent, however, with other legislation and related processes that govern benefits such as earlier pension eligibility. Indeed, CBSA law enforcement personnel are at a disadvantage compared to their peers working for other similar agencies, as they must work longer before retirement, often becoming sick or injured on the job, or unable to meet the physical demands of their work. When I first testified to the House Public Safety Committee about Bill C-20, I asserted that it was crucial that this inconsistency be addressed before the bill becomes law.
We were encouraged in June when the government announced that legislation enabling such changes would be tabled this fall. We’re looking forward to those changes in the very near future, and I do wish to stress how important it is that these occur before Bill C-20 is enacted, so that the benefits our members have access to are consistent with the additional oversight resulting from Bill C-20.
Now, to the amendments, as I’ve noted in the past, the agency is well known among its employees for letting gross abuse by management run unchecked, and it is difficult for CBSA employees to see complaints about managers go addressed through existing channels. In fact, CBSA managers often promote the very atmosphere that allows bad behaviour to flourish. Thanks to the ArriveCAN debacle, the lack of accountability within the agency’s management is now infamous, and it is clear that CBSA’s reporting and internal investigative structure badly needs to be overhauled. Just last week, CBC published an article regarding a case where CBSA was found to have “. . . deceitfully disguised its failure to conduct a proper investigation . . .”, which is really sadly the norm when it comes to CBSA’s management.
I believe Bill C-20 could help address this by introducing clear language around an employee’s right to report problematic conduct from superiors.
We also have pressing concerns around time limits, notably when it comes to the initial time frame for filing a complaint. Under the latest version of the bill, complaints could be made up to two years after an incident allegedly occurred. Given that CBSA officers often interact with hundreds of travellers a day — and that these interactions can be extremely brief — exceedingly long delays would put officers subject to a complaint at a tremendous disadvantage, as recalling a seconds-long interaction that occurred months ago is often near impossible.
To conclude, we have submitted a brief to this committee detailing our concerns with the bill, which we hope will be of assistance. I thank you and look forward to your questions.
The Chair: Thank you very much, Mr. Weber. We now proceed to questions. As usual, four minutes will be allotted for each question, including the answer, and I ask my colleagues to keep your questions succinct in an effort to allow as many interventions as possible. The first question, as in the normal course, goes to our deputy chair, Senator Dagenais.
[Translation]
Senator Dagenais: My first question is for Mr. Sauvé.
We can all agree that not every complaint against police officers is justified, but having witnessed it personally on many occasions, all police officers named in a complaint, whether it’s justified or not, suffer the consequences. Two weeks ago, the chair of the RCMP Civilian Complaints Commission, Ms. Michelaine Lahaie, told us that she was not aware of the impact on police officers when there is a long wait for a file or complaint to be processed. By the way, Mr. Sauvé, you mentioned timeframes, but what do you think of them? Do you think Bill C-20 will improve processing times?
[English]
Mr. Sauvé: As drafted, I don’t believe it will. From my discussions with the Civilian Review and Complaints Commission for the RCMP, or CRCC, I think that they anticipate a much larger workload with minimal added resources. You’re almost adding one third of possible subjects of complaint by including CBSA, which I think is great for the law enforcement community. However, you need to consider the number of interactions, as Mr. Weber pointed out, that CBSA has and the number of interactions that the RCMP has. We’re talking about, from our members, 3 million documented interactions per year across Canada.
Very few of those actually go to the public complaint process, even fewer of those are actually investigated, even fewer of those go to an appeal by the CRCC, and even fewer of those — and we’re talking in the 1%, if less, range — end up in a full‑blown chair-initiated investigation.
However, as it stands now, for example, there is a strategic policy investigation through the CRCC for the Community‑Industry Response Group in British Columbia, which is a full‑time tactical unit that was deployed to enforce a provincial court injunction in numerous protest areas for old logging protests. Those happened two and a half years ago, and we are not even at a point of an interim report.
The resource challenges with the CRCC, as it sits today, is challenging, and to add to their plate without significantly increasing their resource levels will not make the world a better place.
[Translation]
Senator Dagenais: I have a question for Mr. Cappe. I’m a former police officer and I get the impression that, despite the mechanisms put in place to receive complaints from citizens, those who file complaints will never be satisfied. Would the research you’ve conducted help you explain the dissatisfaction and suspicion exhibited towards the commissions who investigate such complaints?
Mr. Cappe: If I understand correctly, I think it’s a question of trust. How do you create or sustain trust in the process and the people who are responsible for setting up these investigations? Ultimately, I think it’s very important, first of all, to choose the right people as members of this commission. Secondly, I totally agree with Mr. Sauvé that there have to be enough resources for it to do what it needs to do.
[English]
Senator Boehm: Thank you to our witnesses for being here. I would like to continue where Senator Dagenais was with you, Mr. Sauvé, and that is regarding the National Police Federation’s recommendation to end the practice of police investigating police under the current CRCC model.
Do you believe that the hybrid investigative model with both civilian and police investigators would fully eliminate the public’s perception of bias, or is it just one step in that direction?
Related to that, because you mentioned in your previous answer the number of complaints and how many are really acted on, you have suggested an increased need for funding and staff. I know it’s very difficult to project how much funding and staff would be required, but do you have a general idea as to how much would be required to handle the anticipated increase in complaints while maintaining the effectiveness and independence that you’re advocating for?
Mr. Sauvé: I would take a ballpark guess. I know the current staff at the CRCC are probably more educated as to what they may need in the forecasts of what they may see in the future as Bill C-20 approaches conclusion and coming into force, but their workload will most probably double. Ultimately, if we’re going to look at a completely independent body, then we’re probably looking at quadrupling their size.
In our submission, we speak a little bit about the current process, obviously. If I’m a member of the RCMP in Estevan, Saskatchewan, and I have a public complaint from a traffic stop that I did six months ago, it’s most probably a member of the RCMP from Estevan, Saskatchewan, or surrounding areas that will be tasked with investigating that. The challenge there is that you’re taking a member of the RCMP, paid for by Saskatchewan, out of their community responsibilities to investigate something when there is no cost recovery. If it takes them 40 hours to do that public complaint investigation, that’s 40 hours of policing the province of Saskatchewan and the good residents of Estevan, Saskatchewan, don’t see in their neighbourhood.
One of the recommendations we have there is to implement a cost-recovery model, if we’re going to maintain the same system, where the RCMP investigates complaints of the first process.
As far as the hybrid model, it works extremely well with the Alberta Serious Incident Response Team, or ASIRT, in Alberta, and it’s working extremely well with the Saskatchewan Serious Incident Response Team, or SIRT, and it works extremely well with the Serious Incident Response Team in Nova Scotia, New Brunswick, Newfoundland and P.E.I., mainly because you get very well experienced major case managers with policing experience that may know the culture and the landscape, and you bring in your civilians as they get exposed to that, so that hybrid blending approach seems to work very well.
Senator Boehm: A quick question for Mr. Cappe. Given your vast experience in public administration and your experience with other jurisdictions and the machinery of government, in general — of course, the Privy Council Office handles that — how would you assess the prospects for getting this moving very quickly?
Mr. Cappe: I wish that was an easy question, and it’s not. I think at the end of the day, having the CRCC already in place helps, so you’re expanding its mandate, but I agree with Mr. Sauvé that you need to have it adequately resourced.
Also, I think the agency — that is the CBSA — has to get itself prepared, and in many ways, it is already. It has an internal review organization that is policing itself, and so we want to avoid that, but it will be in a position to adapt very quickly. In that sense, I think it’s well positioned to implement quickly.
Senator M. Deacon: I’m going to have some questions, but I have some follow-up first to some of the things you said.
Mr. Cappe, you have vast experience and deep experience, which we appreciate. Yes, let’s get this bill through. It’s not perfect. There are some things missing that, perhaps, you would like to see, and I would just like you to take a minute and share with us what those shortcomings are.
Mr. Cappe: Sure. The first is the ability of the review commission to be able to interact with the National Security and Intelligence Review Agency. They can, obviously, do that administratively, but I don’t think there is a provision in the legislation that validates it.
What I would like to see is one of those — so the gateway between the two — and I think the ability of the commission to initiate in its own right, without complaint, an investigation that looks at some of the policy issues.
Let me be very clear: I don’t think any of those have to be done at the first instance. Both of those things — and with all due respect to Mr. Sauvé, whom I have now agreed with several times — none of the suggestions he made have to be done now in order to begin the implementation process. They can all come in subsequent legislation.
I would like to see something established so that CBSA is not without review and then have that legislation improved over time.
Senator M. Deacon: Thank you for that; I appreciate it.
Mr. Sauvé, welcome back. I’m wanting to know if you could elaborate on one of your suggestions in restoring the — it was the term “the DNA” and non-disclosure agreement clause, and then you started to go into a little bit about Example 1 or Part 1 and then Part 2.
Could you clarify that for us, please?
Mr. Sauvé: If we’re talking about the exclusion, as written, of anything contained within a non-disclosure agreement in a separate proceeding, you can’t use that in the PCRC proceedings.
Let’s use the example of I have a complaint against an RCMP member for the investigation of my motor vehicle collision, where separately I have had a lawsuit with the other driver, and it has been settled with a non-disclosure agreement none of the provisions of that settlement can be used or brought into the proceedings of a PCRC investigation about how I was treated by the RCMP. There should be a way around this to maintain the confidentiality of financial settlements and the medical records that may have been a part of one proceeding to allow for the public complaint to proceed and that investigation to be fair, transparent and thorough.
Senator M. Deacon: I was looking for a scenario. That is helpful. Thank you.
Senator Dasko: Thank you to our witnesses for being here today.
My first question is for Mr. Cappe. You may have studied these seven years ago when you were doing this analysis. What are the advantages or disadvantages of having this process report through the legislative branch versus through a department of the federal government? I do not know if you addressed this or what your thoughts are on this.
Mr. Cappe: If I understand your question properly, I would say accountability is one of the fundamental principles of constructing how we do this.
The government should be accountable to Parliament for its activities, and, therefore, the reporting processes that are in place have to be well structured so that, first, CBSA is reporting and providing a lot of information to Parliament and that, secondly, the commission is reporting information to Parliament as well.
Let’s be clear. I am not a police officer, but we are talking about the use of coercion and force in some circumstances. Mr. Weber’s members as well. We need that. They are providing security for Canada and Canadians. But we also need to make sure they are accountable. We need to protect secrecy in the conduct of investigations by the police and the intelligence agencies. Therefore, we need a third party who can attest that they have respect of the law.
Yes, I’m holding them accountable to Parliament, but I would have a system in place wherein there are checks and balances here and where not all things have to be disclosed to Parliament.
Senator Dasko: You feel what we have here is a good balance, a good approach?
Mr. Cappe: I do. I think that that is right.
Senator Dasko: I am interested in the impact of the new complaint process, both on volume — Mr. Sauvé, you suggested the volume may increase — but also on the types or category of complaints, shall we say, that might be brought forward now that were not in the previous process. There was a complaint process. I understand they did calculate the complaints. I am not sure how far they categorized them. I am not sure exactly what we know.
My question is to all of the witnesses about what you see as the potential impact of the change in numbers and types of complaints that might not be brought forward now but would be under the new process.
Mr. Sauvé: Being a police officer, I’ve been subject to public complaints but have also been tasked with investigating public complaints of other members.
I hate to lump people into a bucket, but I will qualify this by saying with the evolution social media and the internet making the world smaller and with varying polarization of perspectives, we will end up in a world where there are several frivolous, vexatious complaints made against law enforcement officials. This puts the current CRCC in the difficult position of justifying the dismissal of those complaints because they are either out of time, frivolous or vexatious.
Mr. Cappe: I have a quick comment to link your two points, senator.
The key element of my proposal was to keep the accountability on the agency, or the police, so that the organizations themselves are responsible for handling this. Mr. Sauvé walked through how the numbers diminish and that the CRCC only gets the most egregious examples. You want to maintain that. You don’t want to have those frivolous, vexatious complaints taking up all of the time. Therefore, you need the agency to be the one who starts the process once there is a complaint.
Mr. Weber: I do agree with some of what Mr. Sauvé said. I think that you will see a lot of complaints with political motivation. This will be a new reality for the CBSA. Right now, we only have our internal process. Will this result in their being more complaints? I would guess, yes. How many? Not sure. That remains to be seen.
Senator Omidvar: I have a question for each witness.
Mr. Cappe, I have not completely read your report. I skimmed through it. It was written in 2017. You said that, generally, you are pleased with the legislation, although some of your proposals were not embedded.
Can you tell me where the legislation improved upon your proposal?
Mr. Cappe: You got me. Senator, I am not sure. It embodied many of the things that I thought would be done administratively. There is an interesting question of what you want to leave for the management to do and when you want Parliament to say, “No, this is how you are going to do it.” It is a bit more prescriptive than I probably thought it was going to be.
Senator Omidvar: We have witnesses here who are asking for more prescriptions, rather than less.
Mr. Cappe: There are always ways of improving the legislation.
Senator Omidvar: Mr. Sauvé, you talked about your recommendation to us to clarify whom we mean by individuals or organizations who are allowed to file a third-party complaint. There are no definitions. You would like to have the legislation paint out how they would be supported. Would you not agree that kind of conversation happens in the discussions about regulations?
Mr. Sauvé: Possibly. “Regulations to follow” is what I see when legislation is passed sometimes.
I have been waiting for changes to Income Tax Act regulations. As Mr. Weber insinuated, he is waiting for changes to Pension Act regulations. They come with an overburdened government that has priorities of the day for their staffing levels. The regulations might come down the road.
I think that Mr. Cappe and I will become best friends today because I agree with a lot of what he had to say, and he is agreeing with a lot of what I said. The challenge is in the interim, do we end up creating something that is overly broad by expanding the law enforcement category within Bill C-20 to include CBSA? Are we going to end up with a number of complaints from interested parties who will argue that they ought to be considered third parties as organizations, thus influencing future regulations before the regulations are published?
Senator Omidvar: Mr. Weber, thank you for your perspectives. Yes, the amendment that was proposed in the house was passed and includes the ability of CBSA members to use the PCRC to address some of the issues you talked about.
My concern is this legislation is meant for customers of the RCMP and the CBSA who have a complaint to file. Your members are unionized. They have routes through arbitration and negotiation. I am concerned that a volume of complaints from your unionized members could possibly impinge the access of individuals. Would you comment on that? Am I right or wrong?
Mr. Weber: I do not think there would be any impingement. The difficulty that we have is that the processes in place lead to nothing at CBSA. We have a culture in many workplaces that is extremely toxic that leads to discriminatory and bad behaviour that you are trying to address through this bill. When you have workplaces where it is management and upper management who behave in this manner, the only people a traveller interacts with are border services officers.
The people who are mainly responsible for the creation of the atmosphere that allows this kind of behaviour could never be addressed through this bill if you are only giving access to it for the travelling public. That’s why you should really be looking at having the people who work there being allowed to use this bill, put in complaints and bring these kinds of systemic issues forward so that they can be addressed, and you can bring about the change that you want.
Senator Patterson: Thank you to our witnesses. This has been absolutely fascinating.
Mr. Weber and Mr. Sauvé, my question is for you, given whom you represent in all of this. We are talking about a broad legislation framework regardless of the fact that there are people involved, and these are members of your respective organizations.
One thing that can happen when we are working on transparency and finding a balance is, sometimes, the desire to take out people in authority through whatever mechanism, especially with a particularly robust social media culture. How are you going to ensure members of your groups receive justice — the respondents receive justice, as well as the complainants?
We also know that once your name is out there, especially when trying to be transparent, which is critical, it can result in cancellation and lifelong consequences on careers.
Will this legislation address it, or is it better addressed in regulation?
Mr. Weber: Some work needs to be done to address that. One of the things I brought forward in my opening statement as well is that having the two years to file the complaint will be a significant challenge for our members. As I said, some of them are dealing with hundreds of travellers a day. Imagine a complaint coming in about a five-second interaction happening 18 months ago. The odds of having an ability to recollect or know what happened are close to zero. That is not fair for the accuser or the accused. As well as those timelines, you need specific timelines in terms of when an investigation comes to a resolution. For every step, timelines need to be included. Right now, it looks like these investigations could go on for years with no real, clear deadlines as to when a decision has to be made.
Senator Patterson: Mr. Sauvé, would you like to add anything?
Mr. Sauvé: It is interesting you brought that up. I forgot to mention this earlier regarding Mr. Cappe’s point about accountability of the agency or administration of law enforcement. It was in our submission to the other committee, but, for example, we have about 14,000 members of the RCMP serving in a uniform capacity all across Canada in 13 different jurisdictions, municipal, provincial and federal roles. They are subject to three specific areas of oversight, one being criminal, i.e. the civilian oversight in Ontario is the Special Investigations Unit, or SIU; in Quebec, it’s le Bureau des enquêtes indépendantes, or BEI. Another one is the code of conduct in the RCMP where you could face up to and including dismissal. The first one, BEI, the civilian one, you can go to jail. The third one is the CRCC, usually administrative in nature for the organization as far as policies, training and implementation.
Now, we have dealt with a lot of cancel culture with respect to members of the RCMP who may be facing a civilian oversight investigation or a public hearing seeking dismissal. There were some fairly public ones last week about a Coquitlam file.
Normally, in the civilian oversight files, unless the member is charged in a criminal court, their information remains private and confidential, and it is never released.
In a conduct proceeding, if they are seeking dismissal, it is public because those hearings are public. That is a good thing. Whether the behaviour is good or bad, we support one hundred per cent the principle of transparency of the justice system and open court.
In the CRCC, it is usually only once you get to the chair‑initiated reviews, and their report is finalized after recommendations from the commissioner are either accepted or rejected, and then that report become public.
We have, since certification — remember, we’re a relatively new union, about five years old now — inserted ourselves in there to be able to assist, guide and provide the NPF’s or the members’ perspective to the CRCC, similar to what the RCMP is doing with respect to the recommendations.
That has had an impact on three chair-initiated complaints in the past five years. They are a little overworked, as I mentioned earlier.
Hopefully, we’ll improve as we go forward.
Senator Yussuff: Thank you, witnesses, for being here. I have three to four questions.
For Mr. Sauvé and Mr. Weber, I understand the chill that a complaint can put on an individual. I think you would agree you are both responsible for public agencies and, as such, there should be some oversight in that regard. This legislation has been through many challenges, never, of course, seeing its way through Parliament, and we may end up getting it through here.
I understand your point about the shortcomings of the legislation.
Let me deal with this quickly, because both of you are on the same path about one year versus two years for somebody to file a complaint.
What is so significant about that? Is it just about the memory of someone, or do you think it might diminish the ability to respond appropriately to give the evidence that is required?
Mr. Sauvé: From my perspective, as it stands today, you can probably ask Ms. Lahaie, the chair of the current CRCC. She is entrusted with a lot of designated authority or the ability to defer and make exceptional circumstances for beyond the one-year timeline.
I don’t understand why we have to automatically expand that to two years. Then, obviously, she would still have that authority in exceptional circumstances to go beyond two years.
We are looking, again, at increasing their workload in allowing those distant complaints, and it might be that traffic stop in Estevan, Saskatchewan, where I disputed the speeding ticket 18 months down the road, and I will say that the police officer was rude.
Mr. Weber: If I can add, it is the ability of our members to respond to complaints. Given how many people we interact with, once that amount of time has passed, there will be very little ability for us to defend any kind of complaint. We’ll not likely have any memory of what happened.
When it was mentioned earlier that union representation is covered with the addition of the words “third party,” and in the brief that we provided, that needs to be tightened up as well to make very specific that union rights are there, that members who are subject to complaints do have the right to union representation, that the right to grieve remains through this process, that all of our collective agreement rights are enshrined. When general wording like “third party” is used, it is kind of being left up to the interpretation of the employer. I have a strong suspicion that the interpretation will be that the union has no part in this whatsoever in that case.
Senator Yussuff: Mr. Cappe, two quick points: This legislation, obviously, is going to have growing pains, like any new legislation. My thought is that the legislation should be reviewed by Parliament within a three- to five-year period to see what is working, what is not working and how we attempt to rectify that. What are your thoughts?
Two other points, equally: You talk about the operational effectiveness of the legislation and, of course, the oversight. Are you satisfied that what is embedded in the legislation right now can address those additional two points in a significant way?
Mr. Cappe: First, Parliament can review legislation any time, all the time. Having a deadline that says that after three years the legislation falls away unless Parliament renews it does not add anything. Parliament can change it at any time. It is up to you to figure out whether it needs to be changed or not.
Frankly, the reporting that the agency and the commission will do to Parliament will be the signal that you will get that says, “Well, it looks like we have a problem,” or, “Things are carrying on pretty well.” I’m less worried about that.
I would make a distinction between “oversight” and “review.” This is reviewing ex post the actions that have taken place. There used to be an inspector general in the public safety department that did oversight in real time. He was second-guessing what the agencies were doing, CSIS, for instance.
That was not helpful, and it was gotten rid of by the Harper government, actually. The point is that you need the substantive review. There is an adequate review built into this legislation.
Senator Cardozo: Thank you for being here. My apologies for being late. I hope that you have not covered this issue before I came, but I will review the tapes.
My question is for Mr. Cappe: Having been the clerk of the entire operation of Ottawa, when you look at this review agency, which will be a review agency over two organizations — and it has existed to review one of them — what are the challenges it faces? Are there any downsides having one agency in charge of reviewing two related, but different, organizations?
Mr. Cappe: I do not think that there is a problem with that. In fact, I think there is an interesting approach that indicates that this should be a review commission for law enforcement actors. Frankly, there are a whole range of other law enforcement actors. When I was deputy minister of the environment, my wildlife officers were out there enforcing, and they would carry weapons. At some point, it is appropriate for Parliament to come back and say, “Once we have completed the implementation phase, we should think about it.” I was involved in the Competition Bureau. While they don’t carry weapons, they do perform search-and-seizure operations. There are many complaints, but there is no complaint agency. You can go to the federal court for the procedures of natural justice, but there is nobody to complain to.
At some point, you will want to look at this as a law enforcement review body.
Senator Cardozo: Are there other agencies that it should be reviewing such as immigration officials?
Mr. Cappe: Mr. Weber can speak to this far better than I can. If you look at the legislation that those Border Services officers are implementing and enforcing, they have something like 90 pieces of legislation. They are very active. There is the Agricultural Review Tribunal, the Immigration and Refugee Board, et cetera. If you go down the list, there are a whole range of them. But none of them are looking at the behaviour and comportment of the officers, and that is what this agency will do.
Senator Richards: Thank you, witnesses, for being here.
I will ask Mr. Sauvé my question: Using a ballpark figure, how many complaints does the RCMP get in a year across the country? Would you know? It would be substantial, wouldn’t it?
Mr. Sauvé: It is not that substantial.
Senator Richards: It is not?
Mr. Sauvé: No. We addressed this in our submission to the House of Commons, and we are happy to share it with you too. I believe the number is 3,000, and out of those 3,000, almost 2,100 are dismissed as frivolous, or do not meet the mandate. Of the other 800, they are downloaded to the membership of the RCMP to investigate. Out of those 800, about 700 are concluded in the first instance, and 150 or so may make their way to an appeal from the complainant to the CRCC, for reinvestigation. Out of 3 million documented interactions per year, that is a good number.
Senator Richards: The commission itself would have to investigate a complaint even if it is frivolous. They would have to decide whether the complaint was frivolous or not. Do you think the two-year period would be justified and would it add anything to the oversight or would one year be enough?
Mr. Sauvé: I think one year is enough. The deference afforded to the chair of the CRCC today — the PCRC, in the future — should be allowed, and you should empower them to make the decision for extenuating circumstances beyond a year.
Senator Richards: Thank you.
[Translation]
Senator Carignan: My question is for Mr. Cappe. It concerns the withdrawal of oversight by a former judge of protected information. There is currently a provision in the Royal Canadian Mounted Police Act that allows the RCMP to refuse access to protected information. However, they must provide reasons for the refusal. If you’re not satisfied, you can go before a former judge. This option was removed from Bill C-20. Do you know why? Has this mechanism ever been used?
Mr. Cappe: I have no information on that. I was not aware that such a capacity previously existed and that it had been withdrawn.
Senator Carignan: Are any of the other witnesses aware of this? Or do any of them have information on the subject? No. Very well. Thank you.
Senator Dagenais: Mr. Sauvé, you’ve made it clear that only a small percentage of complaints lead to proceedings. Here’s what I’d like to know: what are the ramifications for the career of a police officer who is named in a complaint, even if it’s unfounded?
Mr. Sauvé: In terms of the RCMP Civilian Complaints and Review Commission — the bill we’re discussing today — the consequences for an RCMP member, in addition to the social stigma in the aftermath of a public inquiry, are operational guidance, which can be training, or an investigation by an independent agency like the BEI. There could be a criminal case. However, that’s not in the bill we’re discussing today.
[English]
The Chair: This brings us to the end of this panel. It has moved quickly and has been a helpful discussion. Thank you, Mr. Cappe, Mr. Sauvé and Mr. Weber, for joining us today and sharing your advice, your considerable experience and good judgment.
You have made a significant contribution to our work, and you can see the interest around the room. Thank you very much on behalf of our committee and the Senate of Canada.
For our next panel, we have the great honour of welcoming, Natan Obed, President, Inuit Tapiriit Kanatami; Elizabeth Zarpa, Legal Counsel, Inuit Tapiriit Kanatami; and Andrew Bisson, Chief Executive Officer, Assembly of First Nations; and Julie McGregor, Legal Counsel, Assembly of First Nations. Thank you very much for meeting with us today.
We now invite you to provide your opening remarks, which will be followed by questions from our members. We will begin President Obed of ITK. It is great to see you again. Please commence when you’re ready.
Natan Obed, President, Inuit Tapiriit Kanatami: Nakurmiik. Thank you, Mr. Chair. Great to see everyone here this afternoon.
Inuit Tapiriit Kanatami is the national Inuit representational organization for Canada’s 70,000 Inuit.
The first and primary consideration for this piece of legislation for us is in relation to language. For Inuit, it’s Inuktut, the mother tongue of the majority of all Inuit in this country and the majority of whom live in Inuit Nunangat, which is 40% of Canada’s landmass. There are 51 Inuit communities within that space, and modern treaties cover the entirety of it. We either own outright the lands within that 3.6 million square kilometres or we co-manage it with the federal government, and provinces and territories.
Our four regions are the Inuvialuit region in the Northwest Territories as well as Nunavut, which is a complete overlap with the government of Nunavut. The Nunavut agreement created the territory of Nunavut and was an agreement between Inuit and the Crown. Nunavik is in northern Quebec, and there is also Nunatsiavut, which is in northern Labrador.
Seventy per cent of our communities receive contract policing services from the RCMP. The majority of those individuals who are employed by the RCMP are not Inuit. We are working proactively with the RCMP. We have an MOU. We have a shared work plan. Part of that is to do with human resources. Some of it is to do with communications and challenges with language. Some of it is in relation to data. No matter what we are trying to do and have aspirations with the RCMP to do, there are still many Inuit who feel as though the way in which policing services happen across our homeland categorically go against our human rights, especially in the language of service.
We also have great concerns over the excessive use of force and the many examples of that.
Therefore, this particular bill could do very meaningful things to implement equity for Inuit in regard to policing. It could also help implement our existing human rights. It could improve relations with the RCMP. It could also help implement some of the Calls for Justice from the National Inquiry into Missing and Murdered Indigenous Women and Girls.
Specifically, there are just a few points. A practical amendment would be to ensure that the inclusion of provisions designated to enable Inuit to access the commission’s complaint services be provided in Inuktut. Right now, French and English are the languages available. There are no considerations for Indigenous languages — for us, specifically, Inuktut.
We also recommend that the language be included in the bill, enabling complaints to access legal counsel provided by the commission, namely under clauses 35 and 59 of the bill; to address the realities that Inuit experience in their interactions with the RCMP; and to incorporate Call for Justice 5.7 and the Missing and Murdered Indigenous Women, Girls, and 2SLGBTQQIA+ People National Action Plan action 6.12. We recommended that more Indigenous people be placed on civilian police oversight bodies. The bill would benefit greatly from explicitly including Inuit on the commission, specifically under clause 3, as well as the inclusion of provisions under clause 6, establishing regional bodies throughout Inuit Nunangat.
We welcome the intent of the bill, but we have concerns that, once against, federal legislation doesn’t go far enough to explicitly recognize Canada’s obligations to Indigenous peoples, especially in regard to language and the provision of services in remote places.
Nakurmiik.
The Chair: Thank you very much, President Obed. I’m sure you will receive questions from my colleagues.
Next, we will hear from Andrew Bisson on behalf of the Assembly of First Nations. Whenever you’re ready, Mr. Bisson, please proceed.
Andrew Bisson, Chief Executive Officer, Assembly of First Nations: Thank you. Good afternoon to everyone. I’m here on behalf of National Chief Cindy Woodhouse Nepinak, who sends her regrets; she is busy at another meeting today. I’m from M’Chigeeng First Nation on Manitoulin Island in Ontario.
I’m grateful for the invitation to address you today on the impact of Bill C-20 on First Nations. This is the first time we have been consulted on Bill C-20, which has the potential to help combat systemic racism that First Nations have experienced in dealing with both the Royal Canadian Mounted Police and the Canada Border Services Agency.
The United Nations Declaration on the Rights of Indigenous Peoples sets a minimum standard for proper and adequate consultation on legislation that might impact First Nations’ inherent constitutional and treaty rights. We are concerned about this legislation proceeding further without having a specific study focused on the impacts on First Nations rights holders and ensuring that First Nations experiences are being considered.
In consideration of recent reports of First Nations deaths by RCMP and other provincial and municipal police agencies, it is timely that this legislation moves ahead to provide a needed public complaint and review process to operate as an independent review body providing transparency in reviewing police officer conduct.
We are also pleased to see the inclusion of the CBSA in the scope of this commission, because CBSA currently does not have an external review body, relying solely on internal complaints bodies for public complaints.
First Nations citizens often feel negatively profiled by border officials, and that discourages them from crossing, which can disrupt families and cultural connections. We have heard of CBSA officers displaying prejudice or racially motivated ideologies that contravene their commitments to serve the residents of Canada. The national chief herself recently had first‑hand experience of being delayed by CBSA. She recognizes the urgent need for an independent review process and reform measures to prevent First Nations people from being targeted when they are trying to cross the border.
An independent review body can better support accountability of both the RCMP and CBSA to help address systemic racism in those institutions so that First Nations people can be treated fairly.
I will flag a few issues as well. Number one is representativeness of First Nations on the proposed public complaints and review commission. The recent emergency parliamentary debate in the House of Commons on the loss of First Nations lives at the hand of police highlights the desperate need for immediate changes in policing and justice systems that disproportionately affect First Nations. Under Bill C-20, a five‑person public complaints and review commission would be appointed, inclusive of the chair and the vice-chair.
Subclause 3(1.1) specifically speaks of representativeness of the commission, stating that the Public Safety Minister:
. . . must seek to reflect the diversity of Canadian society and must take into account considerations such as gender equality and the overrepresentation of certain groups in the criminal justice system, including Indigenous peoples and Black persons.
It is of the utmost importance that the commission include guaranteed First Nations representation, given the significant overrepresentation and systemic discrimination that First Nations have experienced from these institutions. Repeated failures in de-escalation and culturally informed practices have led to devastating outcomes, including the loss of life. It is not enough to merely seek First Nations representation on what could be a vital oversight mechanism for both the RCMP and CBSA. The AFN supports a minimum of one First Nation’s representative, who would also serve as the lead for any complaints filed involving a First Nations complainant.
The second area of concern with Bill C-20 is that it creates another body that can review conduct and make recommendations without a requirement to enforce the recommendations. We have seen other similar institutions like the Correctional Investigator of Canada, which is mandated under Part III of the Corrections and Conditional Release Act, whose primary function is to investigate and bring resolution to individual complaints under its jurisdiction. Ultimately, the correctional investigator only has the authority to make recommendations to Correctional Service Canada, but we don’t see meaningful action from CSC to act on these recommendations. Bill C-20 cannot be a shell of accountability that has no authority to make structural and systemic changes to address racism and discrimination.
In conclusion, systemic issues are evident in the repeated tragedies and experiences that First Nations citizens face across the country and underlie the urgent need for a public complaints and review commission over the RCMP and CBSA. The commission’s composition needs to reflect First Nations representation, and there must also be First Nations commissioners leading files of First Nations complainants. We also want to see the commission’s final recommendations have the authority to force reform.
Since 1989, there have been more than 20 inquiries and commissions studying racism in the police and justice system in Canada. We need to spend more time and resources actually fixing the system that is broken.
We hope that consideration will be given to our positions today, and that we will be able to see a plan for proper and adequate consultation with First Nations moving forward. Thank you for your time, senators.
The Chair: Thank you, Mr. Bisson. We’ll now move to questions. Four minutes per senator for questions, including the answers. We start with our deputy chair, Senator Dagenais.
[Translation]
Senator Dagenais: My first question is for Mr. Bisson. Mr. Bisson, my first question will be straightforward.
Beyond the language issue raised, are the provisions of this bill likely to improve Indigenous peoples’ confidence in the police complaints process?
[English]
Mr. Bisson: I will turn to my colleague Julie McGregor who will answer the technical questions. Thank you.
Julie McGregor, Legal Counsel, Assembly of First Nations: What you heard in the opening statements from this panel is that we definitely see that the intent of the legislation is good. It is a way of strengthening accountability and addressing many of the Calls for Justice and Calls to Action for inquiries dealing with First Nations and the justice system.
The problem that we see is that we need to see representation for First Nations and Indigenous individuals to feel confident in a review commission or body. They need to see their own representation as part of it. That is why we’re recommending that at least one member be Indigenous — and First Nation, in our case — and that person chairs investigations involving Indigenous people in the RCMP or the Canada Border Services Agency. Again, it strengthens the accountability to see that your own people are involved in this process. It builds trust, and that’s why we’re recommending that.
[Translation]
Senator Dagenais: Bill C-20 establishes that the Civilian Review and Complaints Commission will have to publish annual demographic data on complainants and the subjects of these complaints. We’re told that some of this data already exists, but do you believe that the dissemination of this information will be useful for assessing certain files, and do you believe that we will see an over-representation of certain groups among those who file complaints?
[English]
Ms. McGregor: Yes, I do. I think it would be helpful because we know that there is an overrepresentation of Indigenous people in the justice system and the number of Indigenous people coming into contact with either the RCMP or the Canada Border Services who have negative experiences. So it would be good.
More data is needed to determine to provide an insight into the systemic racism that Indigenous individuals are experiencing with these agencies and these police services. Since October 29, there have been nine First Nation individuals who have died after being in contact with either the RCMP or other police forces. Nine since a month ago. There has to be more at play than unfortunate individuals who came into contact with the police services. There is something systemically wrong there. More data is needed to show that, because that’s probably just the tip of the iceberg in terms of negative experiences that First Nations have with these enforcement agencies.
[Translation]
Senator Dagenais: Thank you.
[English]
Senator Boehm: Thank you witnesses for being with us. My question is for Mr. Obed. It’s good to see you again, sir.
When members of this committee were in Iqaluit as part of our Arctic study two years ago, we met with you and we met with the superintendent of the RCMP. From both sides we were given the distinct impression that trust was being built up. You mentioned in your opening remarks that there is a memorandum of understanding that you’re working on. We have just heard from your colleagues Mr. Bisson and Ms. McGregor about the need to have Indigenous representation on the committee.
Do you feel the same way? That there should be an Inuit presence there in terms of the nature of the relationship and in building this trust, which I think everyone acknowledges will take time? I really like to hear your views on that.
Mr. Obed: Thank you for the question. I can’t help but think of this holistically. This country pledged to try to identify and root out systemic racism, especially after the death of Joyce Echaquan and many other high-profile deaths either in the health care field or in other public service fields.
This legislation could be a vehicle toward stamping out systemic discrimination against Inuit, First Nations and Métis in this country. But the mechanism that you have to use, the legislation, is so used to looking past Indigenous peoples’ human rights and our interests and doesn’t see Indigenous peoples as governments or as having democracies of our own to interact with that your orders in council process doesn’t allow us to systematically improve this piece of legislation through providing, say, a representative from democratic institutions of Inuit governments. It would be wonderful, though, if there could be a time when we could infuse the best of Inuit governments within the Canadian government system to do more in areas such as this.
Yes, I believe that there should be Inuit representation on bodies that are formed here. There should be a consideration for Inuktut, our language. Also, in the regulations of the act, how do you ensure that you have equity in the ability for somebody to take advantage of this piece of legislation, and do so without threat of recourse? Because in small communities, people go to the grocery store and they see RCMP members buying groceries in the next aisle. This is just the way in which our small communities function. I’m sure it’s not just us who would have this problem with the implementation of this act. There has to be a more delicate way to have a complaint process, and some of the pieces — the specific parts of this legislation we worry about from an Inuit context. An Inuk being a part of an oversight process would allow for those natural conversations to happen so that we don’t get into scenarios of implementation where there are, for you, unexpected consequences, but very expected consequences from our side.
Senator Patterson: Thank you very much for your statements. They are absolutely critical, particularly when we think of the impact of policing in general on Indigenous people in Canada.
Looking at data is very important, and there are new reporting obligations that come with the review committee. I see a lot of them tend to be output data. It doesn’t look very deep on the analysis as to what are the systemic issues that are evolving.
From your perspective — and I will ask both of you — what information should they be collecting data on, in order to see what is happening in your communities?
Mr. Obed, if you would like to go first.
Mr. Obed: This is interesting. This is overlapping with many pieces of legislation that we have been working on.
In the proposed idea of Indigenous health legislation, one of the concepts we were pushing forward with the Government of Canada was equity in regard to health services and the staffing of health systems across our homeland.
Per 100,000, I am sure there is a number for policing services or for border services, generally, for Canadians. Often we find, as Inuit, that our small communities are run with a deficit of police officers. It is systemic, and then it creates a negative feedback loop for the services that are provided and the lack of a relationship within a community.
If you are too busy just basically arresting and processing people in the community versus having an outreach in a community and having a presence that doesn’t have anything to do with punitive measures, you can start to build relationships, trust and a more community approach to policing. That is not the case.
It would be wonderful within the scope of this if we could understand some of the key foundations of what makes good policing or what makes good border services, and infuse the act with benchmarks for success or failure on whether we’re even creating a system that can succeed.
We get, then, into the public complaints portion of it. That is, of course, the classic upstream, downstream approach to a lot of our work. I would love to spend more time upstream in figuring out how to create sustainable, healthy relationships between these services and community members rather than trying to adjudicate complaints that, naturally, come from a broken system.
Senator Patterson: Thank you.
Mr. Bisson?
Mr. Bisson: Once again, I will turn to Julie. She has a lot more background on this, and I think it is a better use of your time with her answers.
Ms. McGregor: Similar to what President Obed said, it would be good to not only look at what the negative interactions are but at what the examples are of how things were handled in a good way, so that we would learn from the processes that have been undertaken to improve relations.
Having said that, though, I think distinctions-based statistics would be good, especially for the First Nations population, whether that is on reserve or in urban areas, and also the nature of the incidents.
There are a lot of exceptions included in Bill C-20 in terms of information that can be provided, but it is important to know what the context was and holistically what the interaction was about. Was it a mental health issue, because lately we have seen a lot of circumstances where the RCMP has been called to do mental health checks on individuals, and they end up being killed?
The surrounding circumstances of all of that is lost in all of that, and we are not learning in terms of what kind of support can be given to people who are in a situation where there is a mental health issue. Those sorts of things would be good to include so that we know what services are needed to be implemented in order to enhance just the policing services, because from the First Nations’ perspective, we always want to look toward community policing and more culturally appropriate policing. To do that, we need to understand what the issues are with the negative interactions between First Nations people and the police.
That would be helpful information for us.
Senator M. Deacon: Thank you, all, for being here. We have met some of you before. I am hopeful — from our planned trip north that we had and from you folks being witnesses last year on another situation — that we are getting better with linguistic issues and that we are getting better with seeing yourself at the table and with seeing people well represented. I really hope so, and that is part of our work.
Mr. Bisson, early in your conversation, you talked about the bill, and you said, “I would love for us to do a pre-study, a study first.” That was the language you used, “a study.” I think it is necessary. You talked about the bill.
I would like to know a little bit more about a study that you referred to, respectfully, and what information you would be seeking, what you are looking for that helps this bill, basically at the point of entry?
Mr. Bisson: Ironically, the national chief was just calling me when you asked that question.
I will turn to Ms. McGregor. I am new to this role, so I think she is better placed to speak to it.
Senator M. Deacon: No problem.
Ms. McGregor: If you were talking in the First Nations’ context, there have been a number of inquiries and a number of studies that are helpful in that.
If we are looking at this bill — especially on the CBSA part of it, because there have been many more recommendations with respect to the RCMP and policing but less so on the CBSA.
An hour and a half from here is Akwesasne, which is located on the border of Quebec, Ontario, Canada and the United States. If you have any chance to speak to people from Akwesasne, you have to ask them about their check-ins and how they can go about their daily lives getting services in their community and having to do check-ins with border security and see how cumbersome that is.
There are many communities like Akwesasne. If we are looking at the Blood Tribe in Alberta, their nations also span the border.
I have often heard from many people that Indigenous people and First Nations people didn’t cross the border, the border crossed them.
To give you an indication of those issues, especially on the border side of things, it would be good to go back and have those consultations with communities like that to understand specifically what their issues are with CBSA agents, because we know from Akwesasne’s circumstance that there are several complaints that their nation has to deal with, often on a daily basis.
Just to understand that and how accountability can be strengthened within the act by going to the actual nations and having their ability to give input into that would strengthen Bill C-20.
Senator M. Deacon: You talked about Akwesasne. Thank you for that example.
Are there other areas, geographically, that you would say to this committee that you should check in in this area of the country with this aspect? Any other areas that jump out?
I know there are issues and challenges everywhere, but is there something from your data that says that this is another hotspot?
Ms. McGregor: Again, I spoke about, possibly, the Blood Tribe in Alberta. Along the border, there are many communities located not on the border but in the close vicinity of it. In that sense, culturally, some nations share family members just across the border. I know in my own community, I have family members living in Syracuse, just across the border here.
The issue with border crossings specifically touches on cultural and familial issues. That is shared across the border. I cannot really pinpoint a First Nation for you right now. Definitely, it is a common thread across Canada, and in fact, the AFN has had border summits with CBSA, Homeland Security, and the border officials in the U.S. in which we are often trying to bring people together to discuss what the issues are and if there’s any way we could possibly resolve them to make it easier for First Nations people to visit family members and engage in cultural activities across the border. It is, from our perspective, an issue right across Canada, even in B.C. as well.
Senator Cardozo: Thank you. I have a couple of questions.
First, I want to mention, for the record, a couple of incidents that highlight the difference in how treatment is provided by the RCMP.
I take you back to March 2020. Chief Allan Adam was stopped in Fort McMurray because of a licence plate that was expired. The video showed he was severely beaten up by three, four, or five RCMP officers. Within a matter of minutes, it spun out of control, and he was horribly beaten up.
In July of that year, Corey Hurren, a military reservist from Manitoba, drove his pickup truck to Rideau Hall, the home of our head of state and head of government. He crashed through the gates with a pickup truck full of guns, and the RCMP spent an hour talking him down until he surrendered.
I would say that the latter is the way we should always operate in these sorts of circumstances. To me, that is a learning opportunity to say, “This is how you should do it, this is how you should not do it, and you shouldn’t do this for some people and that for other people.” It is the same police force, the same RCMP. They had the same training, and yet they handled people very differently.
I want to ask you both your experience with the current Civilian Review and Complaints Commission and whether you have had success with them. On the matter of representation on the proposed commission, the PRCP, do you think a commission of five people is too small? A government would normally want to — not to say “normally” — but would want to have various representations on there. Should we be looking at a larger commission than five people, or is that not an issue for you?
Ms. McGregor: I do not know if we have set a number which would be an ideal number to have for the commission. An overly large commission would make it difficult for consensus to be had on issues.
Our issue is more about inclusivity. Whatever the number — five, nine, three — we want to ensure that there are First Nations people represented on that commission because that is necessary given the fact that so many Indigenous people, First Nations people specifically, have died at the hands of the RCMP.
Senator Cardozo: Any comments on the current CRCC, the complaints commission that exists for the RCMP.
Ms. McGregor: Any information we have on the complaints of the current civilian commission is anecdotal. We live with that racism all the time. You talked about the example of Chief Adam. You can’t find Indigenous people and First Nations people across Canada who have not had some kind of negative interaction with the police. It is almost impossible. That is something we live with.
The fact that complaints against police officers are often not investigated, not investigated properly or dismissed as vexatious or whatever, is a deterrent for First Nations people to make complaints to the civilian commission. Anecdotally, I would say we have not had great success in terms of bringing forward complaints to the civilian commission.
Senator Cardozo: Thank you. President Obed?
Mr. Obed: As far as your first question in relation to the size of the commission itself, structurally we are more focused — as the AFN also testified — on having a distinctions-based approach to the composition writ large, however, Inuit, First Nations and Métis fit within the inclusivity of the way in which it functions. That is the end goal, whether it is composed of five, ten, or however many, whether there is a sub-component explicitly considering complaints coming from Indigenous peoples. Those are details that could be written into the legislation or placeholders that could be done in the regulatory process.
As far as existing structures, I would say from a very general perspective, Inuit feel as though most of the structures that have been put in place are institutions investigating themselves. We desperately need this bill to help change that narrative to ensure that when somebody puts a lot on the line to put in a formal complaint against something that has happened to them, they don’t risk further punishment or the system retreating into itself and telling them that it didn’t happen, or that it happened much differently than their lived experience. Ultimately, many of the complaints, whether they are to media or to oversight bodies, end up further harming the victims and further solidifying the contempt for the institutions that they hoped would help them.
Senator Yussuff: Thank you, witnesses, for being here.
I’m struggling with a number of things that you raised. Systemic racism is not an easy issue. It’s difficult to get a country built on colonialism to wake up and say, “Oh, yes, we can fix that problem.” Here we are some 150 years later. The RCMP created to clear you off the land to create a national railway, and now we want it to be transparent in how it is going to operate. It has come a long way in spite of the difficulty, pain, suffering and challenges we face.
President Obed, I wish to start with you.
If your members are policed by the RCMP in your territory and if we are to give them access to this process, you are saying they should be able to use their own language. The legislation does not really address that.
How likely would it be to achieve an outcome when the legislation is devoid of recognition that many of your members who do not speak English or French cannot approach the RCMP or the system to file a complaint because they do not speak the language? Not just for me but for the senators and those in the public who are watching, how do we address or fix that problem?
Mr. Obed: It is a central question. What does Canada mean when it says that it is upholding the United Nations Declaration on the Rights of Indigenous Peoples and its provisions, as well as Canada’s Constitution and section 35?
There is a lazy way to imagine the implementation of our existing human rights. Then, there is the very difficult restructuring of our systems to ensure that our rights are upheld. We’re at this crossroads. This legislation is a tiny part of a much larger challenge for the country. Can you imagine that Inuit will be well served under this legislation if this legislation is completely silent on the subject of the ability of the Inuit to use Inuktut to access provisions under this legislation? I guarantee that Inuit will not be able to use this legislation in Inuktut. When you enter that discussion, is that a human rights violation? Maybe courts will have to decide that 15 years from now when an Inuk wronged by this legislation spends years of their life, and who knows how much money, trying to get the Supreme Court to further clarify how Indigenous rights in this country are meaningfully implemented. They exist, but it is a matter of how they exist. It always pushes us back into the litigation realm.
When we come here and give you these presentations, often we could circumvent all of that by adding in lines that uphold what Canada has already said it would do in regard to things like providing Inuktut as an essential service for Inuit Nunangat in the provision of this legislation. But to your original point, there is no money for that. The system is not tolerant of that. That’s a huge exercise. People politely listen to us, then dismiss it and go on their way, leaving it to another generation or to the Supreme Court to push Canada into a place where it will not willingly go when it comes to upholding the rights of Indigenous peoples.
Senator Yussuff: Mr. Bisson, for the first time we are bringing in the Canada Border Services Agency, which is an important part. Members of your community cross the border and given what Ms. McGregor said earlier about their experiences, is there a worry that despite the legislation that there may be gaps in how diverse communities with many different languages and cultures across the country might be able to file a complaint given the new process with the CBSA now being in the same realm for complaints to be filed?
Mr. Bisson: There are similar experiences to what Mr. Obed was describing as well. There are some of the communities in which our languages are still the dominant language. It’s not quite the same for communities throughout the country. In First Nations communities, our languages are struggling, and every year the number of speakers is decreasing, but it is about cultural training. It is a whole number of things.
Yes, I point out again that the national chief, who has somewhat of a public persona, was stopped at the border with her son. She was stopped for quite some time, not just to get out of her car, but brought into a room. We think, how often does that happen? It happened to her. How often is this happening? We do not really know; there is no data to show this.
As Ms. McGregor pointed out, it affects families who are just trying to cross the border to see other members of their families. There are people in places like Akwesasne, where you cross the border just to go to work every day. People who go from Sault Ste. Marie or those two First Nations communities around Batchewana and Garden River — many of them work on the Michigan side as well. There is a lot of experience like that throughout the country. As Ms. McGregor said, there is no concentrated area. It is across the country.
Looking at my notes, I reflect on the fact that in Saskatchewan the Federation of Sovereign Indigenous Nations worked with the provincial government to set up a health ombudsperson, a First Nations person. That was a process that was a partnership to bring someone in who could be that independent reviewer, an independent body. That should be an example of good practice that we could be looking at for border issues as well. There are definitely some examples that we can look at. Many of them are in their infancy. It is hard to know what the long-term impacts will be, but there are good examples of best practices that we can look at.
Senator Richards: Thank you for being here. Good to see you again, sir. I do not know if you remember, but we met in Fredericton. You gave a very good talk. I’m going to come back to that talk. Senator Yussuff touched on it.
Are the young losing their language? If so, how can you rectify that? You mentioned schools when you were in Fredericton — that there should be schools to teach Inuktitut. What percentage of the young are still speaking Inuktitut in the north?
Mr. Obed: Thank you for the question.
As Inuit, we have the healthiest Indigenous language in the country. It is the second most spoken Indigenous language, second to Cree from a population perspective. In Nunavik, upwards of 100% of all respondents say that their mother tongue is Inuktitut, which is a dialect of Inuktut. In Nunavut it is upwards of 75%. In the Nunalivut and Nunatsiavut regions it is much lower — less than 15% — and very pronounced from a demographic perspective, where older generations have much more fluency than younger ones.
Unfortunately, we have not been able to create school systems where we can reinforce Inuktitut as a language of the home with Inuktitut as formal learning within kindergarten-to-grade-12 education systems and early learning systems. We have an incredible number of passionate educators, which goes from education administrators who develop curriculum, to teachers who deliver that curriculum. But we run up against a number of different challenges: First, the space within provincial and territorial curricula for Indigenous languages and anything taught in Indigenous languages, whether from a standards perspective or accreditation or the funding to be able to do it at all. We have growing challenges because nobody in this country has gone to school and learned Inuktitut from kindergarten to grade 12 as a fundamental outcome of their education system.
There are many people who have gone to language art classes and improved their Inuktitut, but it is an in-kind contribution of the Inuit of Canada to this country for our language fluency. Provinces, territories, the federal government has not invested in our language the way that official languages are invested in — French and English. We tried desperately throughout the Indigenous Languages Act deliberations to have Inuktitut as an official language in Inuit Nunangat in our homeland, but that was struck down, and there is no appetite for that moving forward from the federal government.
It continues to be one of the key foundational reasons why there is language inequity and why we continue to struggle with educating our children in Inuktitut and keeping the vitality of Inuktitut alive for all future generations.
We have not given up on that dream at all. But it is a challenge. We see language shift and language erosion.
Senator Richards: My great-grandfather spoke Gaelic, and we lost that. In some ways, that is why I asked the question.
Mr. Bisson, are there First Nations police officers who do the local policing instead of the RCMP, and if so, how is that working?
Mr. Bisson: I will touch on that briefly and then turn to Ms. McGregor. In the First Nation on Manitoulin Island, which is where I’m from, we have a tribal police force that operates within our communities.
Often, many of the officers are First Nations, but they are under-resourced and their numbers are stretched thin. There are many challenges that they need to take on, and there is a lot of staff turnover as well because of the amount of work and the lack of capacity to do that. We have seen in our community that we have challenges. We’re not that far of a drive from Toronto. We have drug issues and gang issues and stuff like that. I’m on the council in my community as well as in M’Chigeeng. We are wrestling with what we can do. We can do a lot and come up with a lot of ideas, but we still need that enforcement function. There are just not enough people or boots on the ground to do that type of work.
Ms. McGregor: There are approximately 36 self-administered police First Nations police services across Canada. They are governed under the First Nations and Inuit Policing Program, which is under Public Safety Canada. They are a program, not an essential service like all other police forces in Canada. They are funded through funding agreements made between the provinces and the federal government, so the federal government pays 52% and the province pays 48% of their funding.
However, again, because they don’t have an essential service designation, because there is no legislation governing First Nations policing, they are severely underfunded, and they have been for 40 years. My own community has had its own police services for 40 years. We have never had an incident where we lost a community member by shooting from our own police services. It is essential that First Nations police services’ community policing be expanded across Canada and well funded.
Senator Dasko: Thank you. We have met many times. Mr. Bisson, can you share with us how the complaint of the national chief worked out? You mentioned that it sounded like the complaint was with the CBSA. How did it unfold? Did she complain to the CBSA? Did she file a complaint? Was she satisfied with the way it turned out? Can you tell us about the evolution of that and how it worked out?
Mr. Bisson: I don’t know if I want to get into too much detail. It’s in the process right now. She certainly is following up. A letter was sent to Minister LeBlanc. We’re looking at other ways — not just for her — to raise this issue for other folks facing the same type of situation. I think the best way to describe it is that it is in process right now. We’re hoping to see, obviously, some attention to it, and some positive outcomes. I again reflect on her son and other young people that are in those types of circumstances. That guides her perspective going forward.
Senator Dasko: She did file a complaint?
Mr. Bisson: Yes, she did.
Senator Dasko: That would be a good test case to see how the system deals with it.
Mr. Bisson: It happened fairly recently, so it hasn’t gotten to its conclusion yet.
Senator Dasko: A question for everybody: Did you appear before the House committee to talk about your concerns? Did it result in anything? Also, can you share whether you met with the minister during any part of the process when the bill was being created? What was the feedback from the government in terms of your concerns?
Mr. Obed: I did appear before the House of Commons standing committee. Much of my speaking notes that I gave here today were what I gave to the House of Commons standing committee.
The bill has not substantively changed since we appeared before the House of Commons standing committee. I have not spoken directly to the minister about this, although my staff have been in contact with the department, so we have made ourselves clear on our positions within the legislation.
Ms. McGregor: We did not appear before the House standing committee. I think it had more to do with the timing of the committee meetings.
But I want to say that we’re often in a situation where we’re looking at bills at second or third reading, and we’re not included in pre-discussions nor are we consulted or engaged in any lead-up to most of these bills coming forward.
There is no duty to consult on the drafting of legislation. The Supreme Court has said for the purposes of reconciliation and ensuring that First Nations, who have been traditionally excluded in the legal process and in the law-making process, it makes good sense to consult with First Nations. The Supreme Court has said that, but it’s rare in terms of sorts of bills like this that affect First Nations, but are not explicitly about First Nations. It’s very rare that we get consulted in the lead up to the introduction of the bill or even during the legislative process.
Senator Dasko: That is interesting.
Senator Cardozo: Thank you very much. I have two quick questions that probably have very big answers. There has been talk about whether the RCMP should carry on in its role with contract policing in various provinces and territories. One of the arguments is the organization is too big and unwieldy to fix a lot of the problems that it has. Would you like to see that happen or not? Do you prefer it to be one force?
And this is almost a yes-or-no question for the AFN. The problems you have had at the border with CBSA go beyond communities that straddle the border and the problems that you have at airports and other crossings, right, as the national chief had?
Mr. Bisson: Yes.
Senator Cardozo: That’s the answer to the second question, but are there any comments on the first question?
Ms. McGregor: Yes, and it’s a good point that you bring up, because aside from the contracting that happens between the RCMP and the provinces, First Nations are in contract under Community Tripartite Agreements under the First Nations and Inuit Policing Program. So the RCMP are contracted to provide policing services to First Nations communities that don’t have their own self-administered forces.
The problem with this is that often the money provided to the RCMP for officers for First Nations doesn’t get used on officers that are badly needed in those communities. The RCMP will use those funds elsewhere, and they are allowed to do that under the program. We have resolutions from the chiefs requesting that Public Safety provide funding directly to First Nations to do the contracting with the RCMP themselves to ensure that the funds set aside for officers in First Nations actually make it to the First Nations and that there is sufficient policing.
Mr. Obed: Thank you, senator. The majority of our community, 70%, fall under section 20 of the RCMP Act. We are citizens of public governments within our jurisdictions, so we are citizens of Newfoundland and Labrador or Quebec or Nunavut or the Northwest Territories. What we see happening with the growing discontent between provinces and territories and the federal government around policing of our communities is extremely worrying. It seems as if it is coming down to money, not to efficiency of systems or an improvement of services.
We are very concerned that this is going to be more and more of a fiscal political fight between jurisdictions who are trying to get the federal government to pay for the lion’s share, if not all, of the policing within our communities.
In the case of Inuit, we are citizens within municipalities, within public government jurisdictions of provinces and territories. But because we are Inuit, there are now questions about whether provinces and territories should deliver those services to our communities. I worry about this particular issue moving forward and being a lightning rod for political maneuvering and also just another way of offloading responsibility and being a tug of war between two jurisdictions that desperately don’t want to provide services for us. We still have communities that do not have policing services at all. Postville in Nunatsiavut does not have any policing services. So, that’s where we are. We would love to see this trend to being how do we increase safety in our communities? How do we provide the best police services possible? How can we do this together? Rather than a jurisdictional football whose main intent is to offload responsibility and fiscal funding from one jurisdiction to another.
Senator M. Deacon: Thank you so much. You talked, Ms. McGregor, about how in 40 years of internal policing by First Nations there have not been any deaths. Is there a complaint process within that organization?
Ms. McGregor: It’s my First Nation. Complaints process — under the First Nations and Inuit Policing Program, or FNIPP, we don’t have funding for governance processes or external complaints processes. It’s just not the funding. If you look at First Nations policing, there is barely enough to pay salaries for equipment, police cars — they really run on a very shoe string budget. A lot of the time they are covering major areas, large demographics and geographics, so no, there is not funding for the amount of infrastructure that would be needed for that process. For most communities, it’s their chief and council who deal with complaints.
Senator M. Deacon: Thank you very much.
The Chair: This brings us to the end of time with this great panel. Thank you Natan Obed, Andrew Bisson, Julie McGregor and Elizabeth Zarpa for joining us today, giving your advice and sharing your experience and wisdom. You could tell, I think, that people have been interested in hearing your views, and you have answered some quite tough questions really well. Thank you for doing that. On behalf of my committee colleagues and the Senate, thank you for the leadership you provide every day for your respective communities. You do that so well. It’s noticed. It makes a difference. I know that you know that, but I want to add our thanks to you for doing that because we all benefit from it.
For our final panel of the evening, I would like to welcome, from the National Council of Canadian Muslims, Mustafa Farooq, Member, Advisory Committee; and Amad Al Qadi, Advocacy Officer. By video conference, from Amnesty International, Julia Sande, Campaigner, Human Rights Law and Policy. From the Canadian Civil Liberties Association, Shakir Rahim, Director, Criminal Justice Program; and Harini Sivalingam, Director, Equality Program.
Thank you all for joining us. I will now invite you all to provide your opening remarks. You have five minutes each for testimony, and we will begin with the Canadian Civil Liberties Association. I understand Shakir Rahim will begin the testimony, so when you’re ready, please proceed.
Shakir Rahim, Director, Criminal Justice Program, Canadian Civil Liberties Association: Thank you for the invitation to testify before the committee today. My colleague and I will split our opening remarks.
The Canadian Civil Liberties Association, or CCLA, is encouraged to see progress on Bill C-20 and hopes to see the bill become law. Bill C-20 improves the oversight structure of the RCMP and establishes independent oversight of the CBSA, which is long overdue.
I will address three recommended amendments that, as outlined in the civil society joint brief, speak to concerns shared by many organizations. First, subclauses 33(1) and (2) and subclauses 36(1) and (2) ought to be amended to permit complaints into a pattern of conduct that may concern multiple RCMP or CBSA employees. This would allow, where appropriate, a broader-scale examination of misconduct that has shared causes or impacts.
As you know, the House of Commons recently held an emergency debate about the need for action after a pattern of Indigenous persons killed by RCMP officers. In our view, this amendment would ensure that where misconduct constitutes a pattern, as it has in the recent deaths of Indigenous persons, the full scale of the issue can be examined under this complaint route.
Second, we recommend that paragraph 44(1)(c) is amended to ensure that third parties with a substantial interest in the complaint and with permission from the individual to whom the conduct was directed can make representations. Third parties can provide important insight into the scale and nature of misconduct whether the complaint itself concerns a single incident or a pattern.
Third, we recommend amending subclauses 28(1) and (2) to permit reviews of specified activities for the purpose of considering their impact on the public and to include RCMP or CBSA practises as reviewable. This would ensure that concerns that are systemic in nature but not traced directly back to non‑compliance with a specific law or policy can still be subject to appropriate scrutiny. I will now hand it over to my colleague.
Harini Sivalingam, Director, Equality Program, Canadian Civil Liberties Association: My colleague has made pressing concerns about gaps in accountability for law enforcement agencies in Canada, including that lethal force used against Indigenous, Black and racialized people and those with mental health conditions highlight the necessity for greater accountability of federal law enforcement agencies.
I will focus my remaining time on the critical need for oversight of the CBSA, the only federal agency with broad law enforcement powers that has no independent review and complaint mechanism. Given these broaden enforcement and security powers of the CBSA and its interactions with such vulnerable and marginalized groups of individuals — namely migrants, refugees and asylum seekers, the majority of whom are racialized — this glaring absence of oversight raises alarming concerns around accountability.
Civil society organizations like the CCLA have long called for an independent oversight review and complaints mechanism for the CBSA. The death of detainees held in CBSA custody, interrogation tactics of CBSA officers and breaches of privacy rights by information sharing with external bodies demonstrate that this complete lack of oversight must be addressed.
Since 2000, at least 18 asylum seekers and migrants have died in immigration detention in Canada. I want to share with you the story of one of those tragic deaths. Abdurahman Hassan was a refugee from Somalia who came to Canada in 1992. Mr. Hassan lived with schizophrenia, bipolar disorder and post-traumatic stress disorder, and after multiple encounters with law enforcement he was placed in immigration detention. During this time, he was repeatedly subjected to prolonged segregation, in one instance spending 95 consecutive days in solitary confinement. Tragically, Mr. Hassan died on June 11, 2015, while in CBSA custody.
It took eight years to achieve some semblance of justice and accountability when a coroner’s inquest into Mr. Hassan’s death delivered its verdict and recommendations in February 2023. One of those 53 recommendations was to establish an independent oversight body for the CBSA so that what happened to Mr. Hassan would not happen again.
The need for an oversight body for the CBSA is long overdue and urgent, and the time to act is now. We urge the honourable members of this committee to work together to ensure that measures are put into place for a truly effective, accountable and independent oversight of federal law enforcement agencies. Thank you; we look forward to answering any questions you may have.
The Chair: Thank you both.
Next we will hear from Julia Sande, Campaigner, Human Rights Law and Policy, Amnesty International Canada. Ms. Sande, please go ahead when you are ready.
Julia Sande, Campaigner, Human Rights Law and Policy, Amnesty International Canada: Thank you for the opportunity to appear before you today on behalf of Amnesty International Canada. Amnesty International welcomes Bill C-20, which, as you know, would create the public complaints and review commission to provide independent overside of the CBSA as well as the RCMP. While our recommendations are applicable to both organizations, I will focus my remarks today on the CBSA, for which oversight is long overdue.
The CBSA has sweeping powers. It can arrest, detain and deport people. It frequently interacts with people who experience vulnerability and marginalization based on the intersections of their immigration status, race, gender identity and psychosocial disabilities. Despite this, as my friends just mentioned, CBSA remains the only major law enforcement agency in Canada without independent civilian oversight.
In 2021, Amnesty International and Human Rights Watch released a joint report on immigration detention. We found that in the absence of independent oversight, CBSA’s unchecked exercise of its broad mandate and enforcement powers repeatedly resulted in human rights violations. As a result, our organizations echoed the recommendations made by many organizations over the past two decades since the CBSA was established. We called on the government to create an independent civilian oversight body for the CBSA. To be effective, we noted that this body should be able to initiate its own reviews and investigations, allow for third parties to make complaints and have the authority to order meaningful remedies and penalties.
When Bill C-20 was introduced, it was an important step forward in answering this call. We worked with the house committee tasked with reviewing this bill and were pleased to see that critical amendments were made, including to allow NGOs to file complaints. These amendments brought the bill even closer to answering the call and are an important improvement to it the current oversight system for the RCMP. Now we respectfully submit that it is up to the Senate to make the final changes needed to ensure not only that CBSA is subject to oversight, but that such oversight is effective.
Amnesty International has joined eight other leading human rights organizations to submit a joint brief that outlines the final changes that we believe are necessary to ensure effective oversight for CBSA. I want to highlight recommendation number 3 in the joint brief, which is on ensuring the independence of investigations for complaints of a serious nature.
If Bill C-20 were passed without changes, the default situation is that CBSA investigates itself. I understand that in your previous meeting the commission currently tasked with overseeing the RCMP explained that they do not have the resources to take on all complaints, and in some instances it might make more sense for the organizations to resolve minor complaints directly. However, for complaints of a serious nature, having an organization investigate itself or its own officers is likely to lead to perceptions of bias and might make people reluctant to complain.
CBSA has significant power over the people it interacts with. If you are not a citizen, CBSA can strip you of your liberty and separate you from your children, families and communities by incarcerating you in immigration detention, where you could remain for weeks, months or even years. While in detention, CBSA can surveil you, place you in solitary confinement and transfer you to a different facility built for the criminal justice system, and that might be far removed from your community, making it impossible for your family to visit. They can also argue for your continued detention if they say that you are uncooperative. There is a massive power imbalance in these settings.
Our research found that many are fearful of CBSA long after they are released from detention. If CBSA investigates itself for serious complaints or in situations where there is a significant and heightened power imbalance, many might be too fearful of reprisals to make a complaint.
Fortunately, this bill already requires the public complaints and review commission to investigate complaints when the chairperson believes it is in the public interest. We respectfully propose that this bill be amended to set out the circumstances under which it is considered in the public interest for the commission to carry out the investigation. Such circumstances could include complaints about the conditions or site of detention, complaints about discrimination or abuse, and complaints about the removal process. This amendment would enable people in vulnerable situations to make complaints about CBSA to a truly independent body, knowing that they will not be investigated by CBSA.
Amnesty International respectfully calls on you to make this amendment along with the others outlined in our joint brief and work to pass this bill to create an effective and independent oversight body. Thank you; I look forward to your questions.
The Chair: Thank you very much, Ms. Sande.
Colleagues, our final witnesses of the evening represent the National Council of Canadian Muslims and I understand that Mustafa Farooq will deliver opening remarks.
Mustafa Farooq, Member, Advisory Committee, National Council of Canadian Muslims: Thank you, members of this committee, for the opportunity to offer our thoughts. My name is Mustafa Farooq, and I serve on the advisory board for the National Council of Canadian Muslims. Over two million Canadian Muslims are proud to call Canada home, where we have lived for over 150 years. I am also joined by the NCCM’s advocacy officer, Amad Al Qadi.
I want to begin by acknowledging that we are here on unceded Algonquin Anishinaabe territory. We also want to state at the outset that we fully support the recommendations put forward by our colleagues at the Assembly of First Nations and the Inuit Tapiriit Kanatami, as well as my colleagues from Amnesty International Canada and the CCLA.
Today, we want to provide our thoughts on Bill C-20. Before we provide our recommendations on the amendments, it is important that we want to provide our overall perspective on the bill. You have heard from respected leadership at CBSA and the RCMP about their desire for reform and change. Fair enough. Allow me to offer another perspective, and that is my own story.
A few months ago, I was coming back to Canada from abroad. While I was passing through security at Toronto Pearson airport, the CBSA officer asked me if I had received weapons training while overseas. I think I was relatively brusque, as you are often after a long flight, when I suggested to him that I had not indeed received weapon training while abroad. He simply smiled, turned to me and said, “You know why we have to ask these questions.”
The simple reality is that for many in the CBSA and the RCMP, including at the frontlines, systemic racism, anti-Black, anti-Indigenous racism and Islamophobia continue to be challenges. That is why we have been pushing for oversight reform for years. Our position is that while there is much to be desired about strengthening the oversight regime in Bill C-20 — given what we view as a potentially shortened time line in the other place before this bill could potentially vanish from the Order Paper — our overall desire is that, to the extent possible, this bill should pass before the end of the session.
Is this bill ideal? No. Does it provide a first step on the way to more comprehensive overall reform? In our view, the answer to that is, yes. Therefore, if we must choose between amendments to strengthen the bill versus not passing the bill at all, our recommendation would be to pass this bill, especially as we have been advocating for CBSA oversight for many years.
This is due in part — I know my colleagues have observed this — to the excellent work that was done in the other place in terms of important amendments put forward. I draw your particular attention to the amendments around third parties, section 28 and section 33, and lastly, to clause 87 around regulatory powers on information sharing with the National Security and Intelligence Review Agency, or NSIRA.
That being said, there are two key amendments that we respectfully suggest this committee to consider. First, we recommend a provision legislating zero tolerance for discrimination. Our position is that if there is a finding that a CBSA officer has discriminated against a Canadian during the course of their duties on the basis of a protected ground, they are no longer suited for the job. That is why we recommend this amendment. We have had productive conversations with CBSA, I might add, in this regard.
Research conducted in March 2020 found that one out of four CBSA officers surveyed said that they had witnessed a colleague discriminating against travellers, and 71% of them felt that it was based on their national or ethnic origin. That is a systemic problem.
Second, we share the concerns of several of our colleagues put forward around the need for options for a judicial review. While we take the proposition put forward by the minister in relation to the administrative principle around final decision makers seriously, we respectfully submit that given the seriousness of potential recommendations in relation to key policies or reviews, that these findings of the commission should not be limited by such an onerous privative clause as is found in section 65 of the bill.
For example, in Girouard, a federal court case that was upheld by the Federal Court of Appeal, Justice Noël determined in paragraph 69 of the decision that a recommendation by the Canadian Judicial Council, in relation to the removal of a judge, even though it was a recommendation, was subject to judicial review. I’m happy to expand further on that during questions.
Simply put, we share the perspective that these are, to a certain extent, analogous. We cannot see how long-term review and change at the CBSA and RCMP are possible without taking into account the recommendations arising from a decision that should not be subject to judicial review. Subject to your questions, those are our submissions. Thank you.
The Chair: Thank you. We will now proceed to questions. There will be four minutes for each question, including the answer.
[Translation]
Senator Dagenais: My first question is for Ms. Julia Sande.
I personally believe that police officers are under greater scrutiny in Canada. You might say that’s the opinion of an ex‑policeman. For the sake of our study, can you give us a comparison between what Canada is proposing through Bill C-20 and what can be found in other countries, such as the United States, France and Australia?
[English]
Ms. Sande: Yes. Thank you for the question. I have not done a comparative analysis of this bill. The lens through which we have approached it — of course, I know you are asking with respect to RCMP, or I think that you might be, but my focus has been on CBSA — was the complete absence of any oversight. That is quite unusual, certainly even in this country. That is really the lens through which we have approached this.
The key principles that we outlined are based on and informed by our understanding of oversight across many different nations. I would reiterate that where we have seen success and effective oversight, key and core principles are being able to act independently; initiating own reviews, not just being complaints based; allowing for third parties, like NGOs, to make complaints given the fears and vulnerability that some who are interacting with these organizations might face; and ensuring that the oversight agency actually has the power to make meaningful recommendations and order meaningful remedies. I’m not sure if colleagues have anything to add.
Unfortunately, I can’t speak explicitly to the United States, for example.
[Translation]
Senator Dagenais: I have a second question for Mr. Rahim.
You’re proposing an expansion of the commission’s powers. Aren’t you afraid that such an addition would politicize the work, which doesn’t seem to be the intended mandate of Bill C-20? It is not the responsibility of the political branch to order broader investigations with very specific powers?
[English]
Mr. Rahim: Thank you for that question. I certainly agree that we would never want the politicization of this type of oversight mechanism or body. The other reality, as we know, is that it often takes a while before we see meaningful statutory change, and where situations have been identified, that oversight is not as expansive or as broad as it needs to be.
In our view, there is a benefit to ensuring that there is ample room for appropriate investigations to be conducted, also ensuring through external monitoring, reporting and review that there isn’t an unnecessary or unwarranted politicization of the oversight process.
Senator Boehm: Thank you. I wanted to continue in the vein of my colleague Senator Dagenais on the question of data. I’m specifically interested in whether there is a trajectory of discrimination. Is it flat? Is it going up? How do you measure that?
For you, Ms. Sande, you represent a global organization. I would think that with so many displaced people on the move, you are probably in touch with other Amnesty International branches. I’m thinking particularly of Europe and maybe even more specifically of the U.K. and France, whether there is a measurement factor there that you are talking about?
I would also extend that question to Mr. Farooq in terms of deliberation on this bill itself. If we assume the bill is going to go forward and the minister himself has said, it is not perfect but it’s the best step — and that’s exactly what you said as well. What are the specific reforms that you would be looking for in terms of a Bill C-20 Mark II or Mark III? Can we start with Ms. Sande first, please?
Ms. Sande: Thank you. I want to ensure that I understand your question. It is in relation to statistics around racism, and as far as being in contact with colleagues in other parts of the world, is that in relation to statistics on incidents of racism?
Senator Boehm: Statistics and what different border agencies might be doing, because it’s not like this is a localized problem in our country, so I would be interested to know how your rather large — I don’t know how large it is, but you are well spread out across the globe — what the thinking is.
Ms. Sande: I appreciate the question. Certainly, in our research in the context of immigration detention, we found that there were concerns about systemic racism and that racialized people, Black men in particular, were more likely to be held for longer periods; they were more likely to be held in provincial jail, which is a more punitive setting, than in a dedicated immigration holding centre. We also found that there was discrimination against people with psychosocial disabilities, both in the way that discretion was exercised but also baked into some policies around detaining people and facilitating access to care. So detaining them in provincial jails, which again are more punitive, instead of immigration holding centres simply because of their psychosocial disabilities.
In terms of statistics, I’m happy you raised this. It is a challenge to track a change because CBSA is not collecting disaggregated data. That is one thing we welcome in this bill. I see there is the collection of race-based data and other demographic data. That is important.
Senator Boehm: I am sorry to interrupt you. I want to give Mr. Farooq time with respect to the trend line.
Ms. Sande: Of course.
Senator Boehm: I would be more even specific and ask whether you have anything to say about the trend line over the past year, given what has been happening in the Middle East.
Mr. Farooq: Sure, senator.
There are two parts to your question: one about the trend line and one about what we would hope for in a Mark II of this bill. Regarding the trend line — although this is anecdotal because this is what is reported to organizations like the National Council of Canadian Muslims, or NCCM — we are seeing more folks calling the NCCM to say that they are experiencing discrimination at the border. That is what we’re seeing. It has now increased to the point that we receive a formal complaint once every two weeks, whereas before it was roughly once a month. It seems anecdotally to have doubled in terms of complaints received.
One good thing about this bill is that it includes a more comprehensive way of collecting that data in terms of complaints.
In terms of what we would want to see on a Mark II of this bill, we would want to see something that has more teeth. My colleagues previously from the Assembly of First Nations, or AFN, spoke about nine Indigenous men being killed in one month. What kind of comprehensive reform is there to deal with such a deep and engrained problem like that? Those are the kinds of things that we would want to see in a Mark II and Mark III. I want to put on the record the incredible good work that folks such as yourselves, senator, have done in standing up for folks who have lost their lives at the hands of police violence. Those are the kinds of things we need to take a long-term view on in terms of how we ensure that the number of people killed by law enforcement agencies for no reason goes down to zero in Canada.
Senator Omidvar: My questions are to the excellent witnesses on video. I wish to preface my question with a description of the history of this effort.
In 2002 was the Maher Arar detention in the United States and rendition; in 2006 was the Justice O’Connor inquiry calling for the creation of a stand-alone complaints and review commission. Some time in 2016 a senator tabled two private members’ bills; this was followed by Mel Cappe’s 2017 proposal to the government, which we have in front of us. In 2018 first iteration of the bill died on the Order Paper. In 2021 the next iteration died on the Order Paper.
I ask you: Are you insisting on your amendments or are you concerned that if these amendments are tabled, the entire effort would tank again because of today’s particular political context? Would it be better to have no bill, or a bill that will improve in time?
Ms. Sivalingam: Definitely, I speak for myself and our organization when I say that we definitely see the pressing need for oversight, especially when we look at the CBSA, which has nothing at the moment.
Obviously, a bill that establishes oversight for the CBSA and improves oversight for the RCMP is better than no bill.
Senator Omidvar: I came at this in the wrong way as well earlier. There is really no oversight. It is a complaints review mechanism. It is not an oversight body — to be absolutely clear. The RCMP and the CBSA make their own decisions on discipline. It goes from there. The commission will review those decisions and communicate to the minister and the deputy heads if they do not agree with that decision. I wish to be clear about using the right language. I apologize if I have muddied the waters. Mr. Rahim?
Mr. Rahim: Yes, echoing my colleague, in the event these amendments are not adopted, there is still value to observations that might be attached to the report to lay the groundwork for future changes, and also, of course, to signal for policy-makers what this committee recognizes as important, or what value they saw with respect to some of the operational implementation concerns that we have raised.
Senator Yussuff: Thank you, witnesses, for being here. You are making pointed observations in terms of recommendations for amendments to the bill.
My colleague just asked the most obvious question. Recognizing where we are in this Parliament and the success of us succeeding in our effort, are we essentially going to put the bill in jeopardy?
Let me return to the most fundamental question that previous witnesses have suggested and those that you are identifying.
Systemic racism is a real issue. It is not something that people imagine. The system has a long history of its practices and behaviour. It is not something we have just discovered.
Since 9/11 we have seen it at new heights. Opportunities to remedy that, to change the behaviour of frontline officers in how they interact with the public, especially when they are a little bit brown and with a name like yours or mine, I know the reality.
The question is as follows: When you go through security — I have experienced it first-hand — you are pulled over because somebody wants to do a search. I have become used to it. This is the reality.
In the context of what you are saying, like those questions that you were faced when you returned from your trip, there is a sense that there is an injustice in how our system functions, and that is not what we expect of our frontline officers, whether they are in the RCMP or the CBSA. We expect to be treated fairly. Anybody could have come back from a foreign trip, and you could have asked them all the same questions. Why is a Muslim Canadian being asked those questions?
This bill moves us a little bit forward, recognizing that there is not a complete opportunity to address some of the deeper challenges we face.
Do you think passing this bill as a weakness in our part as senators not doing our job, or should we go in the direction that you are recommending which is to amend the bill to remedy some of those things that you feel are important and critical given your experience and the vast number of people that you represent across the country?
Mr. Farooq: Thank you for your insight and your question.
We tried to make it clear in our submissions that, while we do think there are some amendments that could improve this bill, if it is between those amendments going forward and not having enough time to pass this bill, we think this bill should be passed. A scenario that we would not want to see is for this Bill to die on the Order Paper. We do not feel that that is in the public interest for marginalized communities, imperfect as this bill may be.
Senator Cardozo: My first question is for Mr. Rahim. You mentioned your concerns with clause 41(c). Are your concerns assuaged by clause 36, which talks about the chairperson initiating complaints, and subparagraph 38(1)(b)(1), which talks about third-party complaints that Ms. Sande referred to as well.
I wonder if these two sections assuage your concerns paragraph 44.1(c)?
Mr. Rahim: Senator, there are components of the bill — including the provisions that you mentioned — that appropriately ensure third-party participation and engagement. Our view, along with the other civil society organizations, was that the particular provision that we referenced there was one in which opportunity for that involvement could be made clearer. Certainly, it is not the case that we view the bill as not providing any reasonable opportunity for third-party involvement. There are those amendments that were made in the house, and those will go some way to ensuring that type of participation.
Senator Cardozo: Ms. Sande, in the matter of complaints initiated by the chairperson, looking at subclauses 36(1), 36(2) et cetera, what would you want to change in that clause? What would you want added to that section? Is the concern that you want the chairperson to be more independent or to increase the expectations on that?
Ms. Sande: Thank you for the question, senator. I think we would want to set out the circumstances where the commission or the chairperson has to review certain complaints. In this clause, “Chairperson-initiated Complaints,” my understanding is that this would be when they see a concern. My concern was more around complaints initiated by individuals knowing that the default setting is that it goes to the agency they are complaining about, and so, under another section, the commission can say, “If we think it’s in the public interest, we will investigate this complaint.”
We just want it to be set out so that people who are making complaints know — “Okay, I’m in immigration detention. I’m complaining that I’m subjected to systemic racism” — this complaint is going to be reviewed by the commission. It’s not a matter of their discretion; I just know I have that safety and I feel comfortable complaining. That’s more the target of our recommendation, but certainly we see that the section you have identified also provides the chairperson some powers.
Senator Cardozo: There is another section — I don’t recall which one it is — that allows, if an individual makes a complaint and then after a while withdraws it, the commission to decide to continue that complaint because they see it as being a serious issue for example, or maybe they feel the complainant is feeling intimidated or just that the issue needs more attention.
Does it help when the commission can decide to continue with a complaint, even though a complainant withdraws it?
Ms. Sande: Certainly, I think it’s important and valuable.
One other recommendation we made was around stopping removals. If someone is deported, the chances of them being able to continue a complaint are slim. That helps address that.
What we’re trying to focus on is the barrier to making that initial complaint. Yes, this is helpful if someone withdraws their complaint or fear reprisals, but it doesn’t address the initial reluctance people will feel if they don’t know for sure that CBSA, for example, won’t be investigating themselves.
So what you’re identifying again, senator, is important, and it’s a valuable piece of this legislation. But, unfortunately, it wouldn’t address the initial barrier when the complaint might not even get in the door.
With that said, I do want to state in response to Senator Omidvar’s question and the question of multiple senators around taking this bill as is versus no bill at all, and Amnesty echoes the views: We want the bill to be as strong as possible. We hope that is possible, but if it is not, we would take something over nothing because nothing has led to horrific situations going unaddressed for years and years.
Senator Cardozo: It is a terrible “Sophie’s choice” to be involved in it, and at this time, we would rather be able to do what we like to do sometimes, which is amending bills and improve them.
Have you, Ms. Sande, sent us any wording on that? Or could you do that in the next short period? Is it in your brief?
Ms. Sande: It is. I noticed the brief is filed, I believe, under International Civil Liberties Monitoring Group. That’s the group that submitted it, but on behalf of all of us. You should have that brief already.
Senator Cardozo: Mr. Farooq, do you have any comments on the questions I asked?
Mr. Farooq: We share many of those key concerns, and I think they are all reflective of the kinds of amendments that could be made to this bill.
That being said, overall, comprehensively, we would rather that the bill pass as is versus not passing it, if that’s the question.
Senator Cardozo: You don’t want to say that too strongly just yet after everything you proposed, but I get your message, yes. Thank you.
Senator Yussuff: I thank all the panellists that are here, but the advocacy that has gone on for quite some time about having an oversight body has been overwhelming. To see something finally getting put forward to address this concern speaks to the people here and the monitors who have done this hard work. Without their consistent effort to alert us that we need to do something about this, I’m not convinced we would be here. Again, Parliament didn’t make it a priority without advocacy. Thank you so much for the hard work you have done to get us here, recognizing you are making us think harder in regard to the final product. We will certainly take that under advisement.
Thank you so much again for your hard work.
Senator Al Zaibak: Thank you to all our witnesses for being here. It seems to me that what matters most is educating the CBSA, RCMP and other agencies to prevent misbehaviour, misconduct, systemic racism and discrimination. Rather than the process of complaint review that may take years before the outcome comes to fruition, in your view, does Bill C-20 potentially impact the code of conduct and the practices within these kinds of agencies directly or indirectly?
Mr. Farooq: Thank you, senator. I will have my other colleagues comment as well. I will make two observations. I think it is essential that agencies like the RCMP and CBSA remain open to engagement with third-party NGOs like Amnesty, the CCLA and the Assembly of First Nations, and are committed to a dialogue of reconciliation which involves the education and systemic reform process that you correctly allude to.
And that process, while ongoing, has been a challenging one. It’s not just an observation that NCCM has found. Many organizations have found it to be a challenge. Sometimes putting people through training does not resolve to the outcomes that we would like. It is a necessary condition; I’m not sure if it’s a sufficient condition in terms of making sure that these agencies don’t do things such as what we saw in, for example, the Maher Arar scandal or the deaths of Indigenous folks that we have continued to see.
That being said, I think that putting forward Bill C-20 does have certain peripheral effects. Knowing that the complaint process is bolstered can have sort of virtuous cycles of effects where, hopefully, folks maybe think twice before they do certain things; that, at least, is the hope. Even if it doesn’t fully lead to any kind of utopian moments right away, maybe it’s a first step toward getting us to more positive outcomes.
Mr. Rahim: Senator, it’s an excellent question. It highlights the need for us not to see — and, certainly, we don’t see — Bill C-20 as a panacea. There have been reviews, whether of federal policing or other policing jurisdictions; recommendations either ignored or not implemented; check-box training, where you have all the training rolled out, but you still see the same results. As someone who has been through a few rounds of this type of soul-searching around accountability and change, what it often comes down to is culture. How do you change culture in a law enforcement organization to be rights-respecting and to take issues of discrimination seriously? That’s a long project.
Again, I share my colleague’s remarks about Bill C-20 being a building block in that. But we are under no illusions when we’re dealing with these kinds of deep-seated issues. It is going to take a lot more, and it’s up to all of us, policy-makers and the leadership of these services to continue to have these issues on their forefront so that necessary and meaningful introspection and action can be taken.
Ms. Sande: If I could add quickly, I completely agree that both training and oversight are necessary but not, on their own, sufficient. I just wanted to share some words that were shared with us when we were doing our research, from someone who is in immigration detention. We asked what he would say to Canadian authorities. He said:
I don’t want them to know me because these people have power. They can just strip you of everything, you just lose your voice, and the world goes on without you. I just want to have a simple life. I just feel like I’m too small to say anything to Canada.
While I don’t want to overstate what this proposed legislation might accomplish, I do think it is an avenue for people to have a voice where they have had none. I really want to reiterate how important we think this bill is.
Ms. Sivalingam: Just to add to that, as my colleagues have said, Bill C-20 is not going to solve these problems. It’s definitely not going to solve any of them, but it will highlight some of the practices that have caused so much harm to individuals and violated a lot of people’s rights and stripped them of their dignity. It will go a long way in terms of highlighting that and bringing that to the attention of the public.
The Chair: Thank you. Is there anything that you would want to have said that was not drawn from you by the questions that you have heard today? Okay. Thank you.
Colleagues, this brings us to the end of today’s panels. We thank all of our witnesses today for taking the time to be with us, but in this instance, we thank Mr. Rahim, Ms. Sivalingam, Ms. Sande, Mr. Farooq and Mr. Al Qadi. We have learned a great deal from you, and we thank this final panel for sharing your knowledge, insights, personal experience and recommendations. It’s immensely helpful. You have been balanced, you have been thoughtful and you have provided terrific answers and advice in response to some really good questions from my colleagues, so I want to thank you for that.
Colleagues, before we close, Senator Kutcher has tabled an item for consideration for the future work of our committee. Is there any objection to going briefly in camera to discuss this, in which case Senator Yussuff will speak to it? If none, is there an agreement to do that?
If that is the case, we will suspend for two minutes. Thank you again to our witnesses.
(The committee continued in camera.)