Public Safety Committee on June 6th, 2023

[Dane Lloyd, Conservative, Sturgeon River—Parkland, AB]

As Bill C-20 stands today, you don't believe that those authorities would be given to this commission?

[Michael Scott]

Not in its current iteration.

[Dane Lloyd, Conservative, Sturgeon River—Parkland, AB]

Okay.

Do you believe that all complaints should have to go through this new commission, or should there be some sort of threshold so that maybe minor complaints can still be dealt with? It's been told to me that with the magnitude and the cost of having every complaint run through this process, it might not even be necessary to do that. Do you think that there's a threshold, or do you think that all complaints should have to be run through this process?

[Michael Scott]

I don't know that it's as much a matter of threshold as it is of discretion. I think it would be entirely appropriate for an independent oversight committee to identify certain types of complaints and either flag them for informal resolution or as matters that really might be able to be cleared up by a meeting between the member and the complainant. In fact, I suspect that would encompass a fairly significant proportion of the complaints that come in, but we have to make sure that we have room when the important complaints come in, the ones that do matter.

[Dane Lloyd, Conservative, Sturgeon River—Parkland, AB]

From my understanding, possibly with this legislation it's up to the RCMP's discretion and the CBSA's discretion on what to pass along to this new level under Bill C-20. What you're suggesting is that it should be up to the complaints commission's discretion to decide what they're going to look at.

[Michael Scott]

My understanding of Bill C-20 is that it's very much like its predecessor, in that 95% to 98% of those complaints are going to be referred back to the policing agency, and then if a complainant is not satisfied, the complaint will then be referred back for a review process by the CRCC or the PCRC, as the case may be.

[Dane Lloyd, Conservative, Sturgeon River—Parkland, AB]

Can you unpack that again? Did you say that the original complaints will go to the new commission, and then about 95% to 98% are going to be passed back to the frontline services? Then if they're not done to the complainant's satisfaction, they go back to the commission? Is that how I should understand it's working?

[Michael Scott]

That's correct. In the overwhelming majority of cases at present—and it doesn't appear to be any different under Bill C-20—the CRCC receives the complaint, but then in almost all cases it hands it back to the RCMP for investigation and determining—

[Dane Lloyd, Conservative, Sturgeon River—Parkland, AB]

It's largely up to the discretion of the CRCC?

[Michael Scott]

I don't know if it counts as discretion when it's almost 100% of the time, when it's presumptive. I don't think that this would be considered discretion.

[Dane Lloyd, Conservative, Sturgeon River—Parkland, AB]

Is there some mechanism in the legislation that makes this presumptive, or is it just a decision by the personnel who are heading this commission?

[Michael Scott]

It's certainly contemplated, both in the current iteration of the RCMP Act and under Bill C-20, and it simply has been the practice that with some exceptions, most things will be referred back to the policing agency for initial investigation.

[Dane Lloyd, Conservative, Sturgeon River—Parkland, AB]

How much time do I have left? I guess I'm done for time. Thank you.

[The Chair, Liberal, Ron McKinnon]

Thank you, Mr. Lloyd.

We go now to Mr. Noormohamed for five minutes, please.

[Taleeb Noormohamed, Liberal, Vancouver Granville, BC]

Thank you, Mr. Chair.

I would like to ask about really two big things.

Ms. Jeanes, maybe we can start with you on this. One of the things I've been really curious or concerned about is the notion of third parties being able to file grievances on behalf of individuals who have had difficult experiences. Can you talk a little bit about why it is often challenging for individuals who have had challenging experiences with the CBSA to be able to do that? Why is this third party piece so important to being able to advance the notion of oversight in a meaningful way?

[Jenny Jeanes]

I think that to work with refugee claimants and other vulnerable migrants is to bear witness to the real fear that comes with not having status. I think that this adds a dimension to complaints—possibly some related to the RCMP, but far more to the CBSA—when status is an issue, as is the precariousness of even being in Canada. People who fear for their lives back in their country of origin fear persecution and are trying to get status. They do not want, in most cases, to do anything that is going to jeopardize their safety or rock the boat. They don't necessarily distinguish between the CBSA, the IRCC or the Immigration and Refugee Board. It's all the Government of Canada.

Also, there's the power imbalance, especially when we talk about racialized communities. Seeing authorities in uniform.... Many people who are interacting with the CBSA, especially people seeking refugee status, have fled from state authorities that are violating human rights. That is a significant part of the reason they have come here. Seeing a uniform can, in and of itself, create fear.

People may also not feel like it's worth it if they're being deported. It could jeopardize their only chance to be released from detention just before deportation. What often happens is that people being deported want to arrive in their country in the most minimally obvious way possible so that they don't attract the attention of the authorities. If they do, then they might end up in arbitrary detention. They might end up in interrogation and even being tortured. We hear about these things happening.

I could go on and on about all of the barriers that people face in making complaints about the way that they're treated. Having frontline people like me and our membership being able to support somebody who wants to make a complaint, maybe formulate it in their name with their consent.... I've mentioned a few times today that we need the ability to raise concerns, especially on patterns of behaviour and systemic issues, without people having to name themselves, which can be terrifying. Unfortunately, if we don't allow for this option, most of the most egregious examples will never come to light.

[Taleeb Noormohamed, Liberal, Vancouver Granville, BC]

One thing that I think is important is how we convey this sentiment, particularly....

I think about the experiences of members of my own family, who say that you don't rock the boat and don't upset the authorities, because they can make or break you. I think it is often difficult for people who haven't been in that situation to understand this.

As we think about this, it's also important to make sure that this is done in a way that helps make sure that law enforcement, the RCMP and the CBSA see in themselves a better way to understand these stories and a better way to feel or to appreciate that sentiment. I think that's a really important consideration.

We also have this challenge right now about consent. This notion of filing a complaint with consent versus without consent is really critical. I think we have to make sure that we are not putting people in a situation in which things done on their behalf without their consent may inadvertently jeopardize their cases.

I wonder if you can address those two pieces.

[Jenny Jeanes]

The CBSA itself has talked for quite a few years now about the need for culture change at all levels, from frontline enforcement to policy development and management decisions. However, we don't see the culture change coming. Having an independent review mechanism, I think, will make positive changes in terms of that cultural change, especially when there are consequences. As I mentioned before, consequences could be possibly monetary or could be deferring a removal to investigate serious complaints. It's a part of forcing that culture change that in some ways comes but in many cases fails to come.

With regard to consent, I think that we're very alert to the issue of consent. One example that I gave is frontline workers from NGOs, or NGOs themselves, adding examples without names to a named complaint just to show that this is not a one-off situation but a pattern of behaviour. I think that the systemic issue is key. If organizations like the CCR—I'm sorry if I'm repeating myself—are able to formally request a specified activity review, it will help to get around these barriers of individual complaints and consent.

[The Chair, Liberal, Ron McKinnon]

Thank you, Mr. Noormohamed.

Unfortunately, the technical issue we had earlier today has resurfaced, so we have to suspend for a few minutes to rectify it.

We are suspended briefly.

[The Chair, Liberal, Ron McKinnon]

We will continue now.

Ms. Michaud, you have the floor for two and a half minutes.

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

Thank you, Mr. Chair.

Ms. Jeanes, you stated that you were recommending a series of changes. We talked about filing a complaint on behalf of another person or simply about an isolated incident. You also talked about the two-year time frame that you're proposing.

You said that you would like to make other changes, which are in your brief. Can you list a few of them? That will help us in our work. We have a limited amount of time to submit amendments to the committee, so it would be interesting to know what changes you're proposing.

[Jenny Jeanes]

Thank you for the question.

We have multiple suggestions. One of them is that the Canada Border Services Agency should adopt an updated and public code of conduct. That's extremely important.

We're also concerned about the commission possibly refusing to handle a complaint when a parallel process is under way. We feel it's very important that the commission be able to handle matters that concern it, but also that it clearly inform the individual of other parallel processes should it refuse, say, to handle a complaint because it falls under another jurisdiction.

As you can imagine, we're extremely concerned about the situation of those in detention who don't all have full access to complaint mechanisms, and about where the agency is going by setting up an online complaint system, because detainees don't have access to the Internet right now. I know that's something they're looking at changing, but right now the online complaint system is kind of a more robust parallel process. The follow‑up is not the same at all for complaints made in person or on paper by detainees.

We're also concerned about people detained in provincial institutions rather than at Canada Border Services Agency immigration holding centres, since the commission seems to have limited investigative powers in institutions under provincial jurisdiction.

We provide more details in the executive summary we submitted to you and in our brief, and I also specify some of our recommendations.

[The Chair, Liberal, Ron McKinnon]

Thank you, Ms. Jeanes.

Mr. MacGregor, bring us home. You have two and a half minutes.

[Alistair MacGregor, NDP, Cowichan—Malahat—Langford, BC]

Thank you very much, Mr. Chair.

Mr. Scott, I'll turn to you.

I've done a cursory review of the National Security and Intelligence Review Agency Act, and really, that's a very similar body, right? It has responsibilities to review activities and complaints against our national security and intelligence agencies. Really, the only check on its power to review those agencies is that it is not entitled to a confidence of the Privy Council, but it is entitled to access all documents of all agencies.

However, when you come to the proposed BillC-20, and especially to clause 19, you see at all the exceptions for the PCRC and the information that it is not allowed to have.

I've heard you comment a few times that you'd like to see this new body have the powers of subpoena, and I think we're at this very special moment in time when we have a golden opportunity to get this right, given the years of evidence we've had. Can you comment on the discrepancies between the existing statute that gives the powers to NSIRA and what's being proposed here? Really, would it hurt if the PCRC had full access to documents, as NSIRA does, if we have this moment in time to get this right? Can you offer some commentary on that idea?

[Michael Scott]

Thank you, Mr. Chair, for Mr. MacGregor's excellent question.

You make reference to “national security”, and it's true that this is a particular problem in Bill C-20, because in the way it's currently worded, what can be considered a matter of national security is very vague, and if history is any indicator, it is incredibly difficult to get full and transparent disclosure from agencies like the RCMP and the Department of Justice.

In Bill C-20 as it stands now, and as I went through it on a first read, you see that the provisions are drafted in a way that provides a great deal of opportunity for those agencies to take positions on privilege or redactions. That is a systemic issue, and has been for many years, not just in this process but in many processes involving the RCMP.

We have to be able to get the information required, and certainly there are enough checks and balances within the act to ensure confidentiality and protection of that information, but if we're not going to provide full and frank disclosure to the body, then we can't rely on the decisions they're making.