May 25, 2020

Oversight of the CBSA: Is a watchdog forthcoming?

Posted by Legal Team - Bellissimo Law Group PC

Since the establishment of the Canada Border Services Agency (CBSA) in 2003, officers of this organization have been entrusted with significant powers, including of arrest and detention of non-citizens without a warrant. The logics governing the provision of these broad powers point in part to the mandate of this organization, namely to protect the security of the border while also facilitating the flow of legitimate travellers and goods into Canada.[1] Yet, with great power, there must be concomitant measures of accountability. In fact, police agency (who wield similar power to the CBSA) across Canada have all instituted some form of independent oversight; all except the CBSA.[2]

Currently, the CBSA handles public complaints internally. Information on actions to determine the credibility of complaints and efforts taken where necessary to address any identified problems have not been subsequently released to the public.[3] Critics have pointed to these limitations in accountability, arguing that independent and public review of complaints against the CBSA is necessary in order to ensure public trust in the organization. Several high-profile incidents have further underscored the necessity of an independent review body, including the January 2020 findings from the Privacy commissioner that determined that CBSA officers had contravened federal law by unduly searching the personal digital devices of border crossers. The Privacy Commissioner’s review followed several public complaints by Canadians against the CBSA. [4] 

Efforts were implemented by the current Liberal government in 2019 to address this gap in accountability when they tabled Bill C-98. This Bill included provisions to expand the mandate of the Civilian Review and Complaints Commission (“CRCC”, an independent review agency that currently handles public complaints about the RCMP) to also include those lodged against the CBSA. While this Bill did not pass Senate before the end of the parliamentary session[5], Public Safety Minister Bill Blair has since introduced Bill C-3, An Act to amend the Royal Canadian Mounted Police Act and the Canada Border Services Agency Act and to make consequences amendments to other Acts. Minister Blair has confirmed that Bill C-3 essentially “rehashes” Bill C-98.[6] The Government of Canada explains that, if passed, the CRCC, which would be renamed the Public Complaints Review Commission, would be able to:

“receive and investigate complaints from the public concerning the level of service provided by the CBSA as well as the conduct of CBSA officials. It would also be able to refer complaints to the CBSA for initial investigation. If an individual were not satisfied with the CBSA’s handling of a complaint, they could ask the PCRC to review it. At the conclusion of a PCRC investigation, the review body would be able to report on its findings and make recommendations as it sees fit. The President of the CBSA would be required to respond, in writing, to the PCRC’s findings and recommendations.”[7]

Note that included within these expanded provisions are the ability for the PCRC to review public complaints regarding detention specifically. Even further, Bill C-3 introduces limits on the ability of the CBSA to enter into agreements with provinces for detention purposes. The Bill specifies that these arrangements will only be possible going forward where the federal Minister is of the opinion that adequate independent review mechanisms are in place to handle complaints of persons detained in provincial institutions by the CBSA.[8] This interweaving of jurisdictional oversight will no doubt be rife for ongoing review and comment should the Bill ultimately pass.