Question Period Note: External Review Body for the Canada Border Services Agency

• The Government of Canada recognizes that robust accountability mechanisms improve public trust in Canada’s public safety institutions.

• The Government intends to create an independent review and complaints mechanism for the Canada Border Services Agency (CBSA) by building upon the existing Civilian Review and Complaints ‎Commission that currently serves as the review agency for the Royal Canadian Mounted Police.

• The Public Complaints and Review Commission would have the ability to review, on its own initiative or at the request of the Minister, any non-national security activity of the CBSA.

• The review body would also augment the Agency’s own efforts to resolve complaints by providing an independent avenue for complainants.

• The CBSA continues to address complaints and concerns through its current recourse programs to ensure that the public continues to receive consistent, fair and equal treatment when receiving services at the border.

• The Agency is now subject to external review of its national security and intelligence activities by the National Security and Intelligence Committee of Parliamentarians and the National Security and Intelligence Review Agency.

Budget 2019 announced $10.86 million over five years and $2.82 million ongoing for the Canada Border Services Agency (CBSA) to establish an independent review body for the CBSA.

Following the Budget announcement, on May 7, 2019 the then Minister of Public Safety introduced Bill C-98, An Act to amend the Royal Canadian Mounted Police Act and the Canada Border Services Agency Act and to make consequential amendments to other Acts. The Bill would expand the mandate of the existing Civilian Review and Complaints Commission (CRCC), an independent review and complaints body for the Royal Canadian Mounted Police (RCMP), to include review of the CBSA, and rename it the Public Complaints and Review Commission (PCRC).

The Bill received all-party support and passed the first reading at the Senate, but did not complete the legislative process before the dissolution of Parliament in September 2019.

Bill C-3 (former Bill C-98), An Act to amend the Royal Canadian Mounted Police Act and the Canada Border Services Agency Act and to make consequential amendments to other Acts, was introduced on January 27, 2020. The independent review body will have the authority to review complaints related to CBSA services, including employee conduct, initiate systemic reviews of non-national security CBSA activities and programs, and review the Agency’s responses to serious incidents (i.e., serious injury or death occurring in custody).

There have been several calls from stakeholders and the Senate to improve CBSA accountability and transparency. Media coverage of border issues has also questioned the accountability mechanisms for the CBSA, especially over serious incidents (e.g., deaths in custody).

The CBSA is currently the only law enforcement agency under the Public Safety portfolio without an independent review and complaints function, and Canada is the only member of the Border Five without an independent review body for its border agency.

While the CBSA has had an internal recourse function for complaints for many years, it is not seen as ‘arms-length’ from the Agency’s operations.

CBSA will work in collaboration with its partners to advance the initiative under the lead of Public Safety.

Current Complaints Mechanism

The CBSA uses its Enhanced Complaint Mechanism (ECM), a public feedback mechanism that provides an accessible and transparent means to address written service or program-related compliments, comments and complaints. This function is currently managed internally by the CBSA Recourse Directorate.

Each year, the CBSA’s Recourse Directorate receives approximately 2,500 complaints concerning employee conduct and service (e.g., delays at the border). There is currently no mechanism to request an independent review of most of these complaints from the public, including detainees in Immigration Holding Centres. Complaints about conduct and the service provided by CBSA officers are handled internally.

Externally, independent mechanisms exist to review decisions of the CBSA and hold it to account for its decisions. Some examples include: the Office of the Auditor General of Canada, the Canadian Human Rights Commission, Federal and Provincial Courts and tribunals, such as the Canadian International Trade Tribunal and the Human Rights Tribunal. With respect to immigration matters, individuals have appeal mechanisms and may challenge CBSA enforcement actions or inadmissibility decisions taken under the Immigration and Refugee Protection Act (IRPA). Decisions made under IRPA are rendered by the quasi-judicial Immigration and Refugee Board (IRB). The IRB has sole jurisdiction to release or continue detention. Should the outcomes of these processes not satisfy an individual, application for leave and judicial review at the Federal Court are available in most instances. Finally, with respect to national security and intelligence activities, the CBSA is subject to external review by the National Security and Intelligence Committee of parliamentarians (NSICOP) and the National Security and Intelligence Review Agency (NSIRA).

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