Concerns about the proposed Public Complaints and Review Commission

  • February 28, 2023

Bill C-20 seeks to establish a Public Complaints and Review Commission to review and investigate complaints against Royal Canadian Mounted Police and Canada Border Services Agency personnel. The Immigration Law Section of the Canadian Bar Association says the Bill represents an important reform of mechanisms to make complaints but it has 11 key concerns about the Bill as it relates to the CBSA. The most salient are summarized below.

Delays, time limits

The CBA Section is worried the Bill could empower the Commission, working with CBSA, to decide what appropriate time limits for resolving complaints would be. “The Commission’s work could then be portrayed as being ‘efficient’ in dealing with complaints, when in fact the goal lines have been moved,” the submission reads, adding that since complainants are only given one year to file a complaint, it would be reasonable to expect the Commission to be subject to the same fixed timeframe.

Complaints have to be made within a year after the incident, but that delay, along with the 60-day delay to refer a complaint to the Commission, can be extended “by the Commission or the CBSA President if either is ‘of the opinion that there are good reasons for doing so and that it is not contrary to the public interest.’” The CBA submission notes the terms “good reasons” and “public interest” are not defined in C-20, and that vulnerable refugee claimants being the victims of potential misconduct may not realize those are grounds for complaints until more than a year after the fact.

As a simple fix, the Section recommends starting the clock on the delay to file a complaint “after the day on which the applicant is notified of or otherwise becomes aware of the matter,” instead of the day the incidents allegedly took place.

National security

The text of Bill C-20 states that the Commission does not have jurisdiction to review CBSA activities “related to national security.” But the text also says the Commission must refuse to consider a complaint “if it concerns an activity that is closely related to national security.”

As the CBA letter says, it’s unclear whether the different terminology is an oversight or an intended distinction. “The extent to which a complaint will be interpreted as related to national security issues before it ventures into ‘closely related’ territory must be clarified.” This process would involve a qualitative assessment, for instance by focusing on the nature of the activities under possible review versus the characteristics of the person making the complaint. Quantitatively, the Section is urging the legislator to clarity how many national security concerns it will take to automatically deem the complaint “closely related” to national security.

“As lawyers dealing with ATIP requests on behalf of clients, we note that government officials tend to give a wide berth to any statutory provision mentioning matters analogous to security or national security as a reason to refuse access to parts or all of a client’s file,” including officers’ notes. “Without clear guidelines setting out criteria for being ‘closely related’ to national security, the same tendency will operate under the Bill,” the letter reads.

Other clarifications needed

The Immigration Section is concerned that certain terms are not defined precisely enough in Bill C-20. For instance, what constitutes complaints that are “trivial, frivolous, vexatious or made in bad faith,” which could lead to simple dismissals to investigate.

Likewise, the criterion to consider informal resolution of disputes “as soon as feasible” is too vague. “If delays are long and/or unpredictable to begin the process, potential complainants or CBSA personnel may not consider informal resolution to be a viable option. As well, parties should have a reasonable time limit to respond that they either accept or refuse informal resolution in a particular file, to avoid delaying complaint files unduly,” the submission reads.