Public Safety Committee on June 2nd, 2023

[Perla Abou-Jaoudé]

Unfortunately, we didn't have time to submit anything in writing to the committee. We can put something together and sent it in later.

As mentioned in the document we sent you, we think that the definitions contained in Bill C‑20 are really too vague to have probative value and for the new commission to have greater power of investigation.

As my colleague mentioned regarding the definition of detention, it is the Canada Border Services Agency that defines what constitutes detention or arrest. On this point alone, if you don't have a clear and precise definition, that's a problem.

We'll put something together for the committee. We'll send you something more concrete regarding the sections in question.

[Kristina Michaud, Bloc, Avignon—La Mitis—Matane—Matapédia, QC]

That's kind of you. Thank you.

On the subject of overly broad definitions, clause 33 may also be problematic. It stipulates that complaints to the new commission must be made within one year of the day on which the alleged incident occurred. The deadline can be extended if there are good reasons for doing so and it is not contrary to the public interest.

The terms “good reasons” and “public interest” are not defined in Bill C‑20.

Do you think the committee should define those terms? Would extending the deadline be in the public interest? What would constitute a good reason for extending the deadline?

As it stands, it's not really clear. Would you agree?

[Perla Abou-Jaoudé]

I completely agree. We think it should also include policies the agency adopts. Individuals and entities need to have that opportunity.

[Kristina Michaud, Bloc, Avignon—La Mitis—Matane—Matapédia, QC]

Thank you.

I'm not sure whether you heard what Mr. Weber, the national president of the Customs and Immigration Union, had to say. He was in the panel just before this one. He said that the union has repeatedly noted systemic issues within the agency and that the officer who is the subject of the complaint should not be the only one to face consequences. He said it could be worthwhile to look at higher-ups and talked about the need for a culture change.

Given your experience with cases involving immigrants or individuals who have been wronged, do you think the problem goes beyond the actions of a single officer?

[Perla Abou-Jaoudé]

Yes, we see that in the decisions that are made.

I'll give you a straightforward example involving an officer. He decided to arrest someone even before their deferral date, on the grounds that he had suspicions. His supervisor simply told us that he agreed with the officer's decision. A formal complaint was made, but nothing further was done. There was no follow‑up.

We agree with what Mr. Weber said about the agency's culture. We can't speak to what happens with officers internally in the course of their work. In detention cases, when we ask the agency to provide us with the evidence or records, it's very hard to get them in advance, as required under the Immigration and Refugee Protection Act.

We try to bring those things to the attention of the people in charge at the agency. Sometimes, the information is well received, and sometimes, it isn't. In our view, if the change within the agency happened at all levels, it would certainly help in every way.

[Vincent Desbiens]

I'd like to say a bit more on that, if I may.

That is why we think third parties should be able to make complaints. We are witnesses to that culture, or the ongoing problems, whereas it may not always be in the client's best interest to report what happened because it could affect their claim. This is something that could help bring about culture change on a broader level.

It's also important to keep in mind that the client is a newcomer, someone who is vulnerable. They are seeking refugee protection, so they don't want a complaint to impact their claim. They have to find housing and social assistance. They have their family to worry about. From their standpoint, a complaint in relation to the conduct may be the least of their worries. Their lawyer, however, could pursue the matter and take on the additional burden that the client has no intention of dealing with. The lawyer could deal with the matter so as not to add to all the problems the client already has to overcome, not to mention the distress they suffer. The reason we are recommending these things is precisely to change the culture.

[The Chair, Liberal, Ron McKinnon]

Thank you.

I would suggest, witnesses, that the committee would certainly welcome any written submissions on recommendations you might have. As a matter of practicality, I would urge that they be received by us within the next week, so that we can take appropriate action.

We'll go now to Mr. Julian.

Mr. Julian, go ahead, please, for six minutes.

[Peter Julian, NDP, New Westminster—Burnaby, BC]

Thank you, Mr. Chair.

Thank you to the witnesses for their input. It's extremely helpful.

I'm going to start with you, Mr. Cappe. Thank you for your service to the country.

I have two questions for you.

When you worked at Treasury Board, how did you evaluate the process regarding resources? This is something that has come up systematically, that the resources that are being allocated by the federal government seem to fall woefully short of what is actually required. This is anecdotal, isn't it? The question is, on Treasury Board, how would you have evaluated the appropriateness of a budget? What criteria would you have used?

[Prof. Mel Cappe]

Well, Mr. Julian, I'm tempted to tell you that it was magic, but I know that won't suffice.

I think criteria were applied. We looked at the demand and thought about what supply was required. Each of the departments had to then justify the resources. In this case you would expect that CBSA would have gone to the Treasury Board Secretariat, which then would have taken it to the Treasury Board, to ministers, to look at the kinds of requirements and demands there would be.

I said, in answering Mr. Lloyd, that I hoped there would be no complaints, since the agency would adapt and do a better job. I know that's not going to happen; it's not going to get to zero.

You would come to a judgment about how many complaints would require investigation and how much staff would be required to do the investigation. Then you would make sure you had enough people at the border to keep service quality high.

One thing that is required in this is for the agency to establish service standards. You really want to see the agency saying, “Here's how we will respond to your complaints.”

Mr. Sauvé, in the previous panel, talked about how many of the complaints were resolved within 30 days. That shows that the RCMP, at least, has a standard. That would be used when going to the Treasury Board for resources.

[Peter Julian, NDP, New Westminster—Burnaby, BC]

Thank you for that.

It's quite clear, given the figures that we know anecdotally now, what the size and scope of the existing workload is, and the fact that there will be an additional workload to do this properly. It's pretty clear to me that we are falling woefully short, but thank you for your answer.

I want to ask you a follow-up question. You said the commission does its work well. Hopefully, for example at CBSA, the management will take its work seriously. Can you give us any examples of oversight in which we have seen that kind of management taking reform seriously, and where it has led to fewer complaints?

[Prof. Mel Cappe]

Nothing comes to mind, I'm afraid.

I think the principles of the machinery of government and accountability point to the problem of offloading that responsibility. There are examples—and none come to mind at the moment—of how an agency that was having oversight....

I make a distinction between review and oversight. Review is ex post; oversight is in real time.

When you second-guess the agency, you change the behavioural response of the agents. What you don't want is for the agents to think, “I don't have to take this seriously.”

I know, when I was a junior officer, I—

[Peter Julian, NDP, New Westminster—Burnaby, BC]

I'm sorry to cut you off, but I have some other questions.

Thank you.

Now I'm going to turn to you, Mr. Desbiens and Ms. Abou‑Jaoudé.

First, I want to thank you for helping people who often have no other options.

You talked about giving third parties the ability to make a complaint. I think it's quite clear that everyone around the table sees that as an important change that should be incorporated into the bill.

Are you concerned that the new commission can easily dismiss complaints on various grounds? What do we need to change in the bill in order to really fight the systemic discrimination and racism we've been talking about for a few days in relation to the bill?

[Perla Abou-Jaoudé]

Our association is definitely concerned about that. It's too easy to dismiss a complaint regarding an officer's conduct on the pretext that the complaint has less to do with the officer's conduct and more to do with the policy in place.

According to the language in the bill, the new commission must refuse a complaint, simplifying the situation. By stating that the complaint can be refused, the bill makes it easier to do so and would alleviate concerns. The commission would have the flexibility to determine whether the complaint warranted investigation and to decide on the steps that should be taken.

My colleague may wish to add something.

[Vincent Desbiens]

Mr. Chair, I don't have anything to add to what my colleague just said, but if something comes to mind, I will include it in the follow‑up document we send to the committee.

[The Chair, Liberal, Ron McKinnon]

Thank you, Mr. Julian.

We're running a little short of time. I think we will have time to do a shortened second round, as we did last time, but we will go over by maybe five minutes.

Is the committee okay with that? Okay.

In that case, we will begin with Mr. Shipley for five minutes.

[Doug Shipley, Conservative, Barrie—Springwater—Oro-Medonte, ON]

Thank you, Chair, and thank you to the witnesses for being here today.

My first question is going to be for Mr. Cappe.

Mr. Cappe, first of all, thank you for your long and distinguished service to Canada. I want to ask you a bit of a personal question if I may. Back in 2017, you recommended an external oversight body for both the CBSA and the RCMP. That's six years ago. Are you feeling a little frustrated or disappointed, testifying here today, that this is our third attempt at passing this bill since you made those recommendations?

[Prof. Mel Cappe]

I'm sure I am less frustrated than you are, sir.

The only point I would make is that Ms. Damoff made reference to NSIRA and to NSICOP. I think those were more important, quite frankly.

[Doug Shipley, Conservative, Barrie—Springwater—Oro-Medonte, ON]

Okay, and thank you for being here today.

In regard to that, in 2017, you were asked by the then minister of public safety, Mr. Goodale, to conduct a report on federal policing oversight in Canada. Would you say Bill C-20 in its current form aligns with the recommendations you provided in that report?

[Prof. Mel Cappe]

I would say it largely does. There are small points that I would do slightly differently, but the only thing I see as a gap is that point about the commission instituting new reviews.

[Doug Shipley, Conservative, Barrie—Springwater—Oro-Medonte, ON]

Specifically, then, is there anything else missing from the legislation that you would have liked to see, given your experience reviewing law enforcement?

[Prof. Mel Cappe]

There is not, really. I'm assuming this is not the last time that Parliament will deal with this, and five years from now or 10 years from now, you'll be able to assess if this has been good, and what's missing.

[Doug Shipley, Conservative, Barrie—Springwater—Oro-Medonte, ON]

You made me a little nervous here when you said “the last time” we're dealing with it. I hope it's the last time that we're dealing with it as a bill, and that we don't go on to number four, but let's keep our fingers crossed.

Thank you for those answers.

I have a couple of questions for the immigration lawyers.

First of all—either one can jump in on this one—the National Police Federation has shared concerns that the current complaint process effectively leads to police investigating themselves. Do you share those concerns?

[Perla Abou-Jaoudé]

From what we see in the field, I don't think it would be efficient. I don't think our association has a global point of view about that, but in the field it's hard to complain about a co-worker, and it's going to be even harder, we think, to see it from a different point of view.

[Doug Shipley, Conservative, Barrie—Springwater—Oro-Medonte, ON]

Does your fellow lawyer have anything to add to that?

[Vincent Desbiens]

It is also important to keep in mind the perspective of the complainant, who is on the receiving end of a decision made by someone in a position of power. We are talking about people who are usually vulnerable, who come from countries where authorities are not looked upon favourably. It's hard for someone like that to complain to an officer's supervisor because that supervisor is connected to the person who caused the harm. I don't think that would be a useful process for complainants.