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View Christine Normandin Profile
BQ (QC)
View Christine Normandin Profile
2020-02-06 17:19 [p.1059]
Madam Speaker, in theory, my speech should last about 20 minutes, but it might be a little shorter. I want to give some notice to the speaker coming after me. If he or she is listening and is not already in the House, he or she can come a little earlier.
Today we are debating the role of the Canada Border Services Agency. It might be a good idea to remind everyone that the Canada Border Services Agency is a massive organization. It is responsible for enforcing no fewer than 90 laws and regulations, which is a lot. This is a very important organization.
One of the main laws that the Canada Border Services Agency is responsible for enforcing is the Immigration and Refugee Protection Act, or IRPA. Immigration experts and lawyers often say that if Immigration, Refugees and Citizenship Canada, or IRCC, is the judicial branch that handles immigration, the CBSA is its enforcer. This metaphor comes up often in the immigration world.
IRCC follows the judicial process. If a claim is filed, it is made in writing. The claimant is then heard by a panel, which must render a written decision. There are several ways to challenge the decision, either by review or appeal.
There is a transparent, substantive and reasoned process for challenging decisions that fall within the legal branch. However, at the enforcement level, there is no system in place to challenge what is being done, such as how CBSA officers may deal with individuals who, for example, are subject to deportation orders or with immigrants detained in detention centres for identification purposes.
There may be gaps in several places, but there is no way to find out what those gaps are, other than through an access to information request. There is no open complaint system, there is no open process, and there are certainly no guidelines for handling these complaints.
That is exactly what Bill C-3 is trying to correct. We need to ensure that there is a transparent system in place to monitor and track complaints, and perhaps even facilitate filing them.
The subject has attracted media attention in recent years. CBC filed access to information requests to get a better idea of what was going on and what kind of complaints were being received internally. It is possible to file complaints, but they have to be submitted to the CBSA and are handled by the agency, not by an external third party.
CBC filed an access to information request and got some information. From January 2016 through half of 2018, the CBSA received no fewer than 1,200 complaints about its employees. In some cases, the complaints were about harassment and grave misconduct. CBC noted that the number of complaints ruled credible was not made public and there was no information about measures taken to address complaints found to be credible. There is no accountability. Nobody follows up on the complaints. There is no system to remedy complaints deemed admissible.
The subject of the complaints was interesting too. It was not until the media got involved that we found out what was going on. Of the 1,200 complaints received, 59 were about allegations of harassment, five were about allegations of sexual assault, and 38 were about statements alleging criminal association.
In connection with the lack of a complaint handling system that was uncovered by the CBC, we are seeing another problem, namely that people who are in Canada temporarily have less access to this complaints system. We are talking about temporary residents and visitors who may also have to deal with CBSA officers. Some examples were reported by the CBC. A woman who was supposed to be deported to Guatemala claimed that CBSA officers seriously injured her by pushing her to the ground and kneeling on her back. She said, “They pulled [my arm] backwards and kept kicking my back with their knees”.
In that specific case, there is nothing in writing on that woman's file to indicate whether there had really been any excessive use of force. There was no follow up to the complaint because there is no complaint tracking mechanism. However, Nazila Bettache, a Montreal doctor who later saw the woman, said that she had suffered a traumatic injury that damaged the nerves in her cervical spine. Nevertheless, as there is no complaint tracking system, no one could ever shed light on what really happened.
A year and a half ago, La Presse filed an access to information request to get a better idea of what happens to complaints that are received and handled internally by the CBSA. La Presse found that about 100 of the approximately 900 complaints that were received were deemed to be founded. About one in 10 complaints is considered to be founded by the CBSA. Once again, that is problematic because we do not know what criteria are used to determine whether a complaint is founded or credible. The complainant does not necessarily receive a decision with reasons, as would be the case with a complaint received and handled by independent organizations with clear guidelines.
The report noted that some complaints were about CBSA officers who made racist or crude comments about travellers. There is no way to see the details of these complaints or how they were received, assessed and handled, as the case may be.
The Canadian Press also looked into this matter. For 2017-18, it identified 105 complaints that were deemed to be founded, which represented about 12% of the complaints received. It analyzed 875 complaints in total. Once again, we have to wonder about the proportion of complaints that are received and deemed to be founded. Perhaps a more detailed analysis with clear criteria would reveal that more complaints should have been deemed credible and accepted and analyzed. These complaints could have led to follow-up and hopefully to corrective action.
In this case, the Canadian Press looked at the type of complaints made. It mentioned one traveller who stated that a CBSA officer was rude and yelled at her until she passed out. Apprently, the officers only reported that she was found to be in medical distress and received appropriate care. There seems to be a discrepancy between the content of the complaint and the manner in which it was analyzed by the CBSA. However, an external investigation is not necessarily carried out in such cases.
Another complaint came from a traveller who reported that the officers were insulting other travellers and lacked respect. Radio-Canada also looked into this. It raised an issue that is a bit different but that also deserves to be analyzed by the committee that examines Bill C-3. The Radio-Canada articles state that border officers have the right to search the contents of electronic devices but that they have to put the device in airplane mode. It seems that, in many of the cases that were reported, the CBSA officers did not abide by that directive and there was not necessarily any follow up. I will give a few examples.
One person was asked for access to her online bank accounts. The person had her phone with her, and the CBSA officers asked for access to her bank account without giving any reason to justify it. We have to wonder whether it was legitimate to ask the person to give them access to her bank accounts.
Another traveller gave the following example. At the Montreal-Trudeau Airport, returning from a trip to Cuba, he was asked by border officers to open his luggage so they could inspect the contents. The traveller said that he had been to Cuba 15 times and never had any problems. That evening, he was clearly targeted.
In his luggage, he had a cellphone, a tablet and two USB keys, which contained his lesson plans and his students' files. The officers asked him whether they could inspect all of the contents of his USB keys and tablet. The next day, the man received warning messages informing him that an unidentified person had tried to access his Hotmail and Facebook accounts.
This raises questions that are very interesting to me as a lawyer. When those articles were published, I remember that they got people in the legal field talking, particularly my colleagues in immigration law.
Like my colleagues, I wondered what I, as a lawyer, would do if I arrived at customs and a CBSA officer asked me to unlock my phone to verify the contents.
As I am bound by solicitor-client privilege, it is possible that my phone might contain confidential information. I might be an immigration lawyer, and my phone might contain information from my clients that might end up in the hands of the CBSA. Do I cancel my trip? Do I hand over my phone to the officer? Later, if I want to file a complaint, the system does not allow me to do so properly.
There are some gaps when it comes to privacy protection. How do we know if limits have been exceeded when those limits are not yet clearly established? They cannot even be corrected through a process where a complaint is deemed acceptable after being analyzed, detailed and justified, or challenged in court and referred to higher courts to set precedent, because such a system simply does not exist.
The Bloc Québécois will support Bill C-3, just as we supported its previous iteration in the last Parliament, although it may have been introduced a bit too late, unfortunately causing it to die on the Order Paper.
However, we hope the bill will benefit from many thoughtful comments, but not only from CBSA staff. It is important to remember that our support for this bill does not mean we are in any way criticizing CBSA officers. No large organization has a monopoly on problems, nor is any organization immune to them.
The main objective is to give CBSA a chance to develop a good system for analyzing complaints so it can put best practices in place and, if necessary, be able to dismiss people who do not apply best practices when complaints are considered valid.
We hope the committee that studies Bill C-3 will hear from many experts, especially immigration lawyers and representatives of the union representing CBSA employees. This will ensure that the final version of the bill will give CBSA the best possible system for processing complaints and that complaints are then processed in a way that ensures CBSA officers are given clearer guidance.
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