First Session, Forty-second Parliament, 64-65-66-67-68 Elizabeth II, 2015-2016-2017-2018-2019

HOUSE OF COMMONS OF CANADA

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

AS PASSED BY THE HOUSE OF COMMONS June 19, 2019

Her Excellency the Governor General recommends to the House of Commons the appropriation of public revenue under the circumstances, in the manner and for the purposes set out in a measure entitled “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”.

This enactment amends the Royal Canadian Mounted Police Act to, among other things, rename the Civilian Review and Complaints Commission for the Royal Canadian Mounted Police as the Public Complaints and Review Commission. It also amends the Canada Border Services Agency Act to, among other things, grant to that Commission powers, duties and functions in relation to the Canada Border Services Agency, including the power to conduct a review of the activities of that Agency and to investigate complaints concerning the conduct of any of that Agency’s officers or employees. It also makes consequential amendments to other Acts.

1st Session, 42nd Parliament, 64-65-66-67-68 Elizabeth II, 2015-2016-2017-2018-2019

HOUSE OF COMMONS OF CANADA

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

Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:

Commission means the Public Complaints and Review Commission established by subsection 45.‍29(1); (Commission)

Public Complaints and Review Commission

Establishment

45.‍29 (1) The Public Complaints and Review Commission is established, consisting of a Chairperson, a Vice-chairperson and not more than three other members, appointed by the Governor in Council.

Royal Canadian Mounted Police Unit

(2) The officers and employees of the Commission that support the Commission in the exercise of its powers and the performance of its duties and functions under this Part and Parts VII to VII.‍2 may be referred to as the “Royal Canadian Mounted Police Unit”.

Summary of report

(6) The Commission shall make public a summary of the report.

Opportunity to make comments

(7) Before making the summary public, the Commission shall give the Commissioner an opportunity to submit comments on the findings and recommendations included in the report. The Commission shall make any comments that the Commissioner submits public at the same time as it makes the summary public.

Service standards respecting time limits

45.‍37 (1) The Commission and the Force shall jointly establish service standards respecting the time limits within which reviews under section 45.‍34 or 45.‍35 are to be conducted and the time limits within which each of them is to deal with complaints made under this Act and specifying the circumstances under which those time limits do not apply or the circumstances under which they may be extended. The Commission shall publish on its Internet site those service standards that are related to communications with complainants.

Regulations

(2) The Governor in Council may make regulations respecting the establishing of the service standards.

Use of information

45.‍481 (1) Despite any provision in this Act or the Canada Border Services Agency Act, but subject to subsection (2), a member, officer or employee of the Commission, with the approval of the Chairperson, may, in the exercise of their powers or the performance of their duties and functions under that Act,

• (a) use information obtained by the Commission under this Act relating to a complaint if

  • (i) the information relates to a particular event or series of events that involved one or more members and one or more officers or employees, as defined in subsection 16(1) of the Canada Border Services Agency Act, of the Canada Border Services Agency,

  • (ii) the information is relevant and necessary to deal with a complaint made under section 32 or 38 of that Act that relates to the event or series of events or to initiate a complaint under section 38 of that Act that relates to the event or series of events, and

  • (iii) the information is used solely for the purpose of dealing with the complaint or initiating the complaint; and

• (b) use information obtained by the Commission under a review conducted under section 45.‍34 or 45.‍35 of any activity that was, is or may be performed by the Force if

  • (i) the information is relevant and necessary to the conduct of a review under section 18 of the Canada Border Services Agency Act of any similar activity that was, is or may be performed by the Canada Border Services Agency, and

  • (ii) the information is used solely for the purposes of the review referred to in subparagraph (i).

Opportunity to make representations

(2) If the information is privileged information that was obtained from the Force, no member, officer or employee of the Commission may use the information without having first given the Commissioner an opportunity to make representations.

Regulations

(3) The Governor in Council may make regulations respecting the use of information under subsection (1).

• b) la fixation du quorum pour l’exercice de ses fonctions;

• (e) the performance of the duties and functions of the Commission generally.

Special reports

45.‍51 (1) The Commission may, on the request of the Minister or on its own initiative, provide the Minister and the Commissioner with a special report concerning any matter that relates to its powers, duties and functions under this Act. If it does so, it shall also provide them with a summary of the special report.

Summary to be made public

(1.‍1) The Commission shall make the summary of the special report public after at least 15 days have elapsed after the later of the day the summary was provided to the Minister and to the Commissioner.

Annual report

45.‍52 (1) The Chairperson shall, within three months after the end of each fiscal year, submit to the Minister a report of the activities of the Commission during that year under this Act and the Canada Border Services Agency Act, and its recommendations, if any. The Minister shall cause a copy of the report to be tabled in each House of Parliament on any of the first 15 days on which that House is sitting after the day on which the Minister receives the report.

Contents — Canada Border Services Agency Act

(1.‍1) The report referred to in subsection (1) must

• (a) contain information respecting the Commission’s performance in relation to the service standards established under section 20 of the Canada Border Services Agency Act;

• (b) set out the number of complaints made under that Act by persons detained by the Canada Border Services Agency and a summary of the nature, status and disposition of those complaints;

• (c) to the extent known by the Chairperson, set out the number of complaints made by persons who are or have been detained on behalf of the Agency under an agreement or arrangement referred to in subsection 13(3) of the Canada Border Services Agency Act and who have made a complaint respecting their treatment during detention — or their conditions of detention — and a summary of the nature, status and disposition of those complaints; and

• (d) set out the number of serious incidents, as defined in subsection 57(1) of the Canada Border Services Agency Act, that the Commission was notified of under section 58 of that Act and contain information concerning their type, the provinces in which they are alleged to have occurred and whether charges were laid in respect of them.

Records of Complaints

PART 1 

Canada Border Services Agency

Definitions

2 The following definitions apply in this Part.

Restriction

(3) The Agency may enter into an agreement or arrangement with the government of a province respecting the detention of persons on behalf of the Agency only if the Minister is of the opinion that there is in the province an independent individual or body that is empowered to receive and deal with complaints about the treatment and conditions of detention of detained persons.

Exception

(4) If the Minister is of the opinion that there is an urgent need to provide for the detention of persons on a temporary basis, the Agency may, with the approval of the Minister, enter into an agreement or arrangement referred to in subsection (3) with the government of a province even if the Minister is of the opinion that there is no independent individual or body referred to in that subsection in the province.

Duty to provide information

(5) If the Agency is notified that a person who is or has been detained on behalf of the Agency under an agreement or arrangement referred to in subsection (3) has made a complaint respecting their treatment during detention — or their conditions of detention — to any competent authority in the province where they are or were detained, the Agency shall, as soon as feasible, provide the Commission, as defined in subsection 16(1), with all of the information that the Agency has received or receives in relation to the complaint.

Duty to provide copy

(6) If the Agency enters into an agreement or arrangement respecting the monitoring of the treatment and of the conditions of detention of persons detained by or on behalf of the Agency or the inspection of any facility where persons are detained by or on behalf of the Agency, the Agency shall, as soon as feasible, provide the Commission, as defined in subsection 16(1), with a copy of every document containing findings or recommendations that it receives under that agreement or arrangement.

PART 2 

Public Complaints and Review Commission

Interpretation

Definitions

16 (1) The following definitions apply in this Part.

Agency has the same meaning as in section 2.‍ (Agence)

Commission means the Public Complaints and Review Commission established by subsection 45.‍29(1) of the Royal Canadian Mounted Police Act. (Commission)

employee, in relation to the Agency, includes any person who assists the Agency in the exercise of any of its powers or the performance of any of its duties and functions under Part 1, other than a person who assists the Agency by reason only of an agreement or arrangement referred to in subsection 13(3). (employé)

Minister has the same meaning as in section 2.‍ (ministre)

program legislation has the same meaning as in section 2. (législation frontalière)

Designation under subsection 9(2)

(2) Every person designated under subsection 9(2) is an officer or employee of the Agency for the purposes of this Part and, when that person is exercising any power or performing any duty or function by reason of the designation, that person is deemed to be exercising a power or performing a duty or function under Part 1.

Complaints regarding level of service

(3) For the purposes of sections 32 and 38, the taking of — or the failure to take — a decision in relation to the level of any service provided by the Agency by a person who, at the time the decision was taken, or not taken, as the case may be, was an officer or employee of the Agency is deemed to be conduct by the person in the exercise of a power or the performance of a duty or function under Part 1.

Powers, Duties and Functions

Powers, duties and functions of Commission

17 (1) The Commission shall exercise the powers and perform the duties and functions that are assigned to it under this Part.

Canada Border Services Agency Unit

(2) The officers and employees of the Commission that support the Commission in the exercise of its powers and the performance of its duties and functions under this Part may be referred to as the “Canada Border Services Agency Unit”.

Review and report

18 (1) For the purpose of ensuring that the activities of the Agency are carried out in accordance with Part 1, with any ministerial directions made under that Part and with any policy, procedure or guideline relating to the operation of the Agency, the Commission may, on the request of the Minister or on its own initiative, conduct a review of specified activities of the Agency and provide a report to the Minister and the President of the Agency on the review.

Conditions

(2) In order to conduct a review on its own initiative, the Commission

• (a) must be satisfied that sufficient resources exist for conducting the review and that the handling of complaints under this Part will not be compromised; and

• (b) must have taken reasonable steps to verify that no other review or inquiry has been undertaken on substantially the same issue by a federal or provincial entity.

Notice

(3) Before conducting a review on its own initiative, the Commission shall give a notice to the Minister indicating that it is satisfied that the conditions referred to in subsection (2) have been met and setting out the rationale for conducting the review.

Policies, procedures and guidelines

(4) The Commission shall include in the report any findings and recommendations that it sees fit regarding the adequacy, appropriateness, sufficiency or clarity of any policy, procedure or guideline relating to the operation of the Agency.

Summary of report

(5) The Commission shall make public a summary of the report.

Opportunity to make comments

(6) Before making the summary public, the Commission shall give the President of the Agency an opportunity to submit comments on the findings and recommendations included in the report. The Commission shall make any comments that the President submits public at the same time as it makes the summary public.

Powers

19 (1) The Commission has, when conducting a review under section 18, all of the powers of the Commission under paragraphs 44(1)‍(a) to (d).

Application

(2) Subsections 44(2) to (5) apply, with any necessary modifications, to the exercise of the powers by the Commission under subsection (1).

Service standards respecting time limits

20 (1) The Commission and the Agency shall jointly establish service standards respecting the time limits within which reviews under section 18 are to be conducted and the time limits within which each of them is to deal with complaints made under this Part, and specifying the circumstances under which those time limits do not apply or the circumstances under which they may be extended. The Commission shall publish on its Internet site those service standards that are related to communications with complainants.

Regulations

(2) The Governor in Council may make regulations respecting the establishing of the service standards.

Education and information

21 The Commission shall implement education and information programs to make its mandate under this Part better known to persons who interact with officers or employees of the Agency, including those who are detained by or on behalf of the Agency.

Information Provisions

Right of access — reviews

22 (1) Despite any other Act of Parliament and subject to section 25, the Commission is entitled, in relation to a review conducted under section 18, to have access in a timely manner to any information in the possession or under the control of the Agency that the Commission considers is relevant to the review.

Protected information

(2) Under subsection (1), the Commission is entitled to have access to information that is subject to any privilege under the law of evidence, to solicitor-client privilege or the professional secrecy of advocates and notaries or to litigation privilege.

For greater certainty

(3) For greater certainty, the disclosure to the Commission under this section of any information that is subject to solicitor-client privilege or the professional secrecy of advocates and notaries or to litigation privilege does not constitute a waiver of those privileges or that secrecy.

Right of access — complaints

23 Despite any other Act of Parliament and any privilege under the law of evidence and subject to section 25, the Commission is entitled, in relation to a complaint made under section 32, to have access in a timely manner to any information in the possession or under the control of the Agency that the Commission considers is relevant to the complaint.

Documents and explanations

24 Under sections 22 and 23, the Commission is entitled to receive from the officers and employees of the Agency any documents and explanations that the Commission considers necessary for the exercise of its powers and the performance of its duties and functions under this Part.

Exception

25 The Commission is not entitled to have access to

• (a) a confidence of the Queen’s Privy Council for Canada the disclosure of which could be refused under section 39 of the Canada Evidence Act; or

• (b) commercial information that Canada has committed under an international agreement to keeping confidential.

Disclosure prohibited

26 A current or former member, officer or employee of the Commission, or any person who is acting or has acted on the Commision’s behalf, may disclose information that they obtained or to which they had access in the course of exercising their powers or performing their duties and functions under this Part only for the purpose of exercising their powers or performing their duties and functions under this Part or as authorized or required by any other law.

Protection of confidential information

27 (1) The Commission shall, when preparing an annual report referred to in section 45.‍52 of the Royal Canadian Mounted Police Act, a summary referred to in subsection 18(5) or 31(1) or a report referred to in subsection 50(2), 51(2) or 54(3), take the steps that it considers necessary to ensure that the report or summary does not contain

• (a) information referred to in subsection (2) the disclosure of which would be injurious to national security, national defence or international relations or would compromise or seriously hinder the administration or enforcement of program legislation or the investigation or prosecution of any offence; or

• (b) information referred to in subsection (2) that is subject to solicitor-client privilege or the professional secrecy of advocates and notaries or to litigation privilege.

Description of information

(2) The information described in subsection (1) is any information that the Commission obtained — or is created from information that it obtained — under this Part.

Safeguards — third party

28 (1) The Commission shall not disclose information that it has received from the Agency under this Part to any person or entity other than a member, employee or officer of the Commission or a person acting on its behalf unless the Chairperson of the Commission is satisfied that

• (a) the person or entity will take reasonable measures to protect that information;

• (b) the person or entity will require all of its members, employees, officers and other persons acting on its behalf to meet requirements that are equivalent to the requirements referred to in section 45.‍45 of the Royal Canadian Mounted Police Act; and

• (c) the person or entity has agreed to any measures that would assist the Commission to verify compliance with the obligations described in paragraphs (a) and (b), which may include agreeing to permit the Commission to enter and inspect the premises of the person or entity and any information storage facilities and to provide any information or documents requested by the Commission.

Regulations

(2) The Governor in Council may make regulations respecting the disclosure by the Commission of information that it has received from the Agency under this Part to persons or entities other than a member, employee or officer of the Commission or a person acting on its behalf and the measures that the persons or entities receiving the information are to take to protect the information.

Duty to comply

(3) Every person who has received information under this section shall comply with the regulations made under subsection (2).

Use of information

29 (1) Despite any provision in this Act or the Royal Canadian Mounted Police Act, a member, officer or employee of the Commission, with the approval of the Chairperson of the Commission, may, in the exercise of their powers or the performance of their duties and functions under that Act,

• (a) use information obtained by the Commission under this Act relating to a complaint if

  • (i) the information relates to a particular event or series of events that involved one or more officers or employees of the Agency and one or more members, as defined in subsection 2(1) of the Royal Canadian Mounted Police Act,

  • (ii) the information is relevant and necessary to deal with a complaint made under section 45.‍53 or 45.‍59 of that Act that relates to the event or series of events or to initiate a complaint under section 45.‍59 of that Act that relates to the event or series of events, and

  • (iii) the information is used solely for the purpose of dealing with the complaint or initiating the complaint; and

• (b) use information obtained by the Commission under a review conducted under section 18 of any activity that was, is or may be performed by the Agency if

  • (i) the information is relevant and necessary to the conduct of a review under section 45.‍34 or 45.‍35 of the Royal Canadian Mounted Police Act of any similar activity that was, is or may be performed by the Force, as defined in subsection 2(1) of that Act, and

  • (ii) the information is used solely for the purposes of the review referred to in subparagraph (i).

Regulations

(2) The Governor in Council may make regulations respecting the use of information under subsection (1).

Immunity

Immunity for criminal, civil or administrative actions or proceedings

30 (1) No criminal, civil or administrative action or proceeding lies against the members, officers or employees of the Commission, or any person acting on behalf or under the direction of the Commission, for anything done, reported or said in good faith in the exercise or purported exercise of any of their powers, or the performance or purported performance of any of their duties or functions, under this Part.

No summons

(2) A member, officer or employee of the Commission, or any person acting on behalf or under the direction of the Commission, is not a competent or compellable witness, in respect of any matter coming to the knowledge of the Commission or that person as a result of the exercise of any of their powers or the performance of any of their duties or functions under this Part, in any proceeding other than a prosecution for an offence under this Part, a prosecution for an offence under the Security of Information Act or a prosecution for an offence under section 132 or 136 of the Criminal Code.

Reporting

Special report and summary

31 (1) The Commission may, on the request of the Minister or on its own initiative, provide the Minister and the President of the Agency with a special report concerning any matter that relates to the Commission’s powers, duties and functions under this Part. If it does so, it shall also provide them with a summary of the special report.

Summary to be made public

(2) The Commission shall make the summary of the special report public after at least 15 days have elapsed after the later of the day the summary was provided to the Minister and to the President of the Agency.

Complaints

Complaints

32 (1) Any individual may make a complaint concerning the conduct, in the exercise of any power or the performance of any duty or function under Part 1, of any person who, at the time that the conduct is alleged to have occurred, was an officer or employee of the Agency.

Right to refuse to deal with complaint

(2) The Commission may refuse to deal with the complaint if, in its opinion,

• (a) the complaint is trivial, frivolous, vexatious or made in bad faith; or

• (b) the complaint is from an individual who

  • (i) is not the individual at whom the conduct was directed,

  • (ii) is neither the guardian, tutor, curator or mandatary — under a protection mandate — of the individual at whom the conduct was directed nor a person who is appointed to act in a similar capacity on behalf of the individual,

  • (iii) did not see or hear the conduct or its effects as a result of not being physically present at the time and place that the conduct or its effects occurred,

  • (iv) has not been given written permission to make the complaint from the individual at whom the conduct was directed, or

  • (v) has not suffered loss, damage, distress, danger or inconvenience as a result of the conduct.

Duty to refuse to deal with complaints

(3) The Commission shall refuse to deal with the complaint if, in its opinion,

• (a) the complaint has been or could have been adequately dealt with, or could more appropriately be dealt with, according to a procedure provided for under any Act of Parliament — other than this Act — or any Act of the legislature of a province;

• (b) the complaint relates to a disciplinary measure taken or not taken by the President of the Agency; or

• (c) dealing with the complaint would compromise or seriously hinder the administration or enforcement of program legislation or the investigation or prosecution of any offence.

Notice to complainant and President

(4) If the Commission refuses to deal with a complaint, it shall give notice in writing of the refusal and the reasons for it to the complainant and the President of the Agency. If the reason for the refusal is that the complaint could more appropriately be dealt with according to a procedure provided for under any Act of Parliament — other than this Act — or any Act of the legislature of a province, the notice given to the complainant shall identify that procedure.

Time limit

(5) The complaint must be made within one year after the day on which the conduct is alleged to have occurred or any longer period permitted under subsection (6).

Extension of time limit

(6) The Commission or the President of the Agency may extend the time limit for making the complaint if the Commission or the President, as the case may be, is of the opinion that there are good reasons for doing so and that it is not contrary to the public interest.

Notice

(7) If the complaint is made more than one year after the day on which the conduct is alleged to have occurred and the President of the Agency does not extend the time limit for the making of the complaint, he or she shall so notify the complainant and the Commission.

Reception of complaint

(8) The complaint must be made to the Commission or any officer or employee of the Agency.

Assistance

(9) The Commission shall, on the request of an individual who wishes to make a complaint, arrange for the provision of assistance to that individual in making the complaint.

Acknowledgement and notification

(10) As soon as feasible after the Commission or an officer or employee of the Agency receives a complaint, the Commission or an officer or employee of the Agency, as the case may be, shall acknowledge the complaint in writing to the complainant and shall provide written notice of the complaint to the President of the Agency. If the complaint is received by an officer or employee of the Agency, an officer or employee of the Agency shall also provide written notice of the complaint to the Commission.

Notice to officer or employee

33 As soon as feasible after being notified of a complaint, the President of the Agency shall notify in writing the officer or employee whose conduct is the subject matter of the complaint of the substance of the complaint unless, in the President’s opinion, to do so might compromise or hinder any investigation that is being or may be carried out in respect of the complaint.

Withdrawal of Complaints

Withdrawal

34 (1) A complainant may withdraw a complaint at any time by sending a written notice to the Commission or the President of the Agency.

Assistance

(2) The Commission shall, on the request of an individual who wishes to withdraw a complaint, arrange for the provision of assistance to that individual in withdrawing the complaint.

Notice of withdrawal

(3) As soon as feasible after the Commission or the President of the Agency receives a notice that a complaint has been withdrawn, they shall give written notice of the withdrawal to the other.

Notice to officer or employee or other person

(4) When the President of the Agency receives a notice referred to in subsection (1) or (3), he or she shall notify in writing the officer or employee whose conduct is the subject matter of the complaint that the complaint has been withdrawn.

Investigation or hearing into withdrawn complaint

(5) Despite the withdrawal of the complaint, the complaint may be the subject of an investigation, review or hearing conducted under this Part.

Preservation of evidence

(6) The President of the Agency shall ensure the protection and preservation of any evidence relating to a withdrawn complaint.

Regulations

(7) The Governor in Council may make regulations respecting the period during which the evidence is to be protected and preserved.

Informal Resolution of Complaints

Informal resolution

35 (1) As soon as feasible after receiving or being notified of a complaint, the President of the Agency shall consider whether the complaint can be resolved informally and, with the consent of the complainant and the officer or employee whose conduct is the subject matter of the complaint, may attempt to resolve it informally.

Inadmissibility

(2) An answer or statement made in the course of attempting to resolve a complaint informally, by the complainant or the officer or employee whose conduct is the subject matter of the complaint, may be used or received against that person only in

• (a) a prosecution under section 132 or 136 of the Criminal Code; or

• (b) a civil or administrative proceeding regarding an allegation that, with intent to mislead, the person gave the answer or statement knowing it to be false.

Agreement to informal resolution in writing

(3) The terms of every informal resolution of a complaint, as well as the agreement of the complainant and the officer or employee whose conduct is the subject matter of the complaint to those terms, must be signified in writing. A copy of everything so signified in writing is to be provided to the Commission.

Regulations

(4) The Governor in Council may make regulations prescribing categories of complaints that are not to be resolved informally by the President of the Agency.

Clarification

(5) For greater certainty, nothing in this section prevents the Commission from informally resolving a complaint of which it is seized under this Part and, if the Commission attempts to informally resolve such a complaint, subsection (2) applies.

Representations

Right to make representations

36 (1) If a complaint is made under this Part with respect to the conduct of an officer or employee, the following persons shall be given an opportunity to make representations with respect to that conduct’s impact on them or the individual at whom the conduct was directed:

• (a) the complainant;

• (b) the guardian, tutor, curator or mandatary — under a protection mandate — of the individual at whom the conduct was directed or a person who is appointed to act in a similar capacity on behalf of the individual; and

• (c) an individual who has written permission to make the representations from the individual at whom the conduct was directed.

Disclosure

(2) Representations, including any personal information contained in them, received by the Commission in relation to the complaint must be disclosed as soon as feasible to the Agency.

Regulations

(3) The Governor in Council may make regulations respecting the making of representations under subsection (1).

Records of Complaints

Duty to establish and maintain

37 (1) The President of the Agency and the Commission shall establish and maintain a record of all complaints they receive or for which they are provided notice under this Part, including those that are resolved informally and those that are withdrawn by the complainant.

Making record available

(2) The President of the Agency shall, on request, make available to the Commission any information contained in a record maintained by the President under subsection (1), other than information described in paragraph 25(a) or (b) and information that is subject to solicitor-client privilege or the professional secrecy of advocates and notaries or to litigation privilege.

Chairperson-initiated Complaints

Complaints initiated by Chairperson

38 (1) If the Chairperson of the Commission is satisfied that there are reasonable grounds to investigate the conduct, in the exercise of any power or the performance of any duty or function under Part 1, of any person who, at the time that the conduct is alleged to have occurred, was an officer or employee of the Agency, the Chairperson may initiate a complaint in relation to that conduct.

Chairperson is complainant

(2) Unless the context otherwise requires, a reference in this Part to a complainant is, in relation to a complaint initiated under subsection (1), a reference to the Chairperson of the Commission.

Notice to Minister and President

(3) The Chairperson of the Commission shall notify the Minister and the President of the Agency of any complaint initiated under subsection (1).

Notice to officer or employee

(4) Immediately after being notified of a complaint under subsection (3), the President of the Agency shall notify in writing the officer or employee whose conduct is the subject matter of the complaint of the substance of the complaint unless, in the President’s opinion, to do so might compromise or hinder any investigation that is being or may be carried out in respect of the complaint.

Investigation of Complaints by the Agency

Investigation by the Agency

39 (1) Subject to subsection (2) and section 40, the Agency shall investigate any complaint made under this Part.

Restriction on power to investigate

(2) The Agency shall not commence or continue an investigation of a complaint if

• (a) in the Agency’s opinion, doing so would compromise or seriously hinder the administration or enforcement of program legislation or the investigation or prosecution of any offence; or

• (b) the Commission has notified the President of the Agency that the Commission will investigate the complaint or institute a hearing to inquire into the complaint.

Right to refuse or terminate investigation

40 (1) The President of the Agency may direct the Agency to not commence or continue an investigation of a complaint, other than a complaint initiated under subsection 38(1), if, in the President’s opinion,

• (a) any of the reasons referred to in paragraph 32(2)‍(a) or (b) or (3)‍(b) applies; or

• (b) having regard to all the circumstances, it is not necessary or reasonably practicable to commence or continue an investigation of the complaint.

Duty to refuse or terminate investigation

(2) The President of the Agency shall direct the Agency to not commence or continue an investigation of a complaint by an officer or employee of the Agency if the complaint has been or could have been adequately dealt with, or could more appropriately be dealt with, according to a procedure provided for under any Act of Parliament — other than this Act — or any Act of the legislature of a province.

Notice to complainant and officer or employee

(3) If the President of the Agency directs the Agency to not commence or continue an investigation of a complaint, he or she shall give notice in writing to the complainant and the officer or employee whose conduct is the subject matter of the complaint of the decision and the reasons for it and the complainant’s right to refer the complaint to the Commission for review, within 60 days after the day on which the complainant is notified of the decision, if the complainant is not satisfied with the decision.

Additional information in notice to complainant

(4) If the President of the Agency directs the Agency to not commence or continue an investigation of a complaint because the complaint could more appropriately be dealt with according to a procedure provided for under any Act of Parliament — other than this Act — or any Act of the legislature of a province, the notice given to the complainant under subsection (3) must identify that procedure.

Notice to Commission

(5) The President of the Agency shall notify the Commission of any action he or she takes under this section.

Rules

41 The President of the Agency may make rules governing the procedures to be followed by the Agency in notifying persons under this Part and in investigating, disposing of or otherwise dealing with complaints under this Part.

Updates with respect to the investigation

42 The President of the Agency shall, on the regular basis provided for in service standards established under section 20, notify in writing the complainant and the officer or employee whose conduct is the subject matter of the complaint of the status of the investigation unless, in the President’s opinion, to do so might compromise or hinder any investigation that is being or may be carried out in respect of the complaint.

Report

43 As soon as feasible after the investigation of a complaint is completed, the President of the Agency shall prepare and send to the complainant, the officer or employee whose conduct is the subject matter of the complaint and the Commission a report setting out

• (a) a summary of the complaint;

• (b) the findings of the investigation;

• (c) a summary of any action that has been or will be taken with respect to the disposition of the complaint; and

• (d) the complainant’s right to refer the complaint to the Commission for review, within 60 days after the day on which the complainant receives the report, if the complainant is not satisfied with the disposition of the complaint.

Powers of Commission in Relation to Complaints

Powers

44 (1) The Commission may, in relation to a complaint before it,

• (a) in the same manner and to the same extent as a superior court of record, summon and enforce the attendance of witnesses before the Commission and compel them to give oral or written evidence on oath or solemn affirmation and to produce any documents and things that the Commission considers relevant for the full investigation, hearing and consideration of the complaint;

• (b) administer oaths and solemn affirmations;

• (c) receive and accept any evidence and other information, whether on oath or solemn affirmation or by affidavit or otherwise, that the Commission sees fit, whether or not that evidence or information is or would be admissible in a court of law; and

• (d) make any examination of records and any inquiries that the Commission considers necessary.

No excuse

(2) No witness shall be excused from answering any question or producing any document or thing, when compelled to do so by the Commission, on the grounds that the answer or statement made in response to the question, or the document or thing given by the witness, may tend to criminate the witness or subject the witness to any criminal, civil or administrative action or proceeding.

Inadmissibility

(3) Evidence given, or a document or thing produced, by a witness who is compelled by the Commission to give or produce it, and any evidence derived from it, may be used or received against the witness only in

• (a) a prosecution under section 132 or 136 of the Criminal Code; or

• (b) a civil or administrative proceeding in respect of an allegation that, with intent to mislead, the witness gave an answer or statement knowing it to be false.

Use of evidence

(4) Despite subsection (1), the Commission shall not receive or accept any answer or statement made in response to a question described in subsection (2) in any investigation or hearing with respect to any other complaint.

Witness fees

(5) Any witness, other than an officer or employee of the Agency, who is summoned is entitled, at the discretion of the Commission, to receive the same fees and allowances as those paid to witnesses summoned to attend before the Federal Court.

Investigation by Commission

Complaints

45 (1) After receiving or being notified of a complaint made under this Part, the Commission shall investigate the complaint or institute a hearing to inquire into it if the Chairperson of the Commission is of the opinion that it would be in the public interest for the Commission to do so.

Notice to President and Minister

(2) The Commission shall notify the Minister and the President of the Agency of any investigation or hearing initiated under this section.

Right to discontinue investigation

46 (1) The Commission may decide to discontinue an investigation of a complaint if, in its opinion,

• (a) any of the reasons for which it may refuse to deal with a complaint under paragraph 32(2)‍(a) or (b) applies; or

• (b) having regard to all the circumstances, it is not necessary or reasonably practicable to continue to investigate the complaint.

Duty to discontinue investigation

(2) The Commission shall discontinue an investigation of a complaint if, in its opinion, any of the reasons for which it shall refuse to deal with a complaint under paragraph 32(3)‍(a), (b) or (c) applies.

Notice to complainant and President

(3) If the Commission discontinues an investigation of a complaint, it shall give notice in writing of the discontinuance and the reasons for it to the complainant and the President of the Agency. If the reason for the discontinuance is that the complaint could more appropriately be dealt with according to a procedure provided for under any Act of Parliament — other than this Act — or any Act of the legislature of a province, the notice given to the complainant must identify that procedure.

Notice to officer or employee

(4) After receiving the notice, the President of the Agency shall notify the officer or employee whose conduct is the subject matter of the complaint of the discontinuance.

Consolidation of complaints

47 The Commission may, if in its opinion it is appropriate to do so, merge two or more complaints for the purposes of an investigation, review or hearing.

Updates with respect to investigation

48 The Commission shall, on the regular basis provided for in service standards established under section 20, notify in writing the complainant and the officer or employee whose conduct is the subject matter of the complaint of the status of the investigation unless, in the Commission’s opinion, to do so might compromise or hinder any investigation that is being or may be carried out in respect of the complaint.

Referral of Complaints to Commission

Referral to Commission

49 (1) A complainant who is not satisfied with a decision under section 40 or a report under section 43 may, within 60 days after the day on which they are notified of the decision or receive the report, refer the complaint in writing to the Commission for review.

Extension of time limit

(2) The Commission may extend the time limit for referring a complaint to the Commission for review if it is of the opinion that there are good reasons for doing so and that it is not contrary to the public interest.

Material to be provided

(3) If a complainant refers a complaint to the Commission under subsection (1),

• (a) the Commission shall notify the President of the Agency that the complaint has been referred to the Commission; and

• (b) the President of the Agency shall, as soon as feasible, provide the Commission with a copy of the notice given under subsection 40(3) or the report sent under section 43 and a copy of every other document relating to the complaint that the Agency provided to the complainant.

Review by Commission

50 (1) The Commission shall review any complaint referred to it under section 49.

Commission satisfied

(2) If, after reviewing the complaint, the Commission is satisfied with the President of the Agency’s decision or report, the Commission shall prepare and send a report in writing to that effect to the President, the complainant and the officer or employee whose conduct is the subject matter of the complaint.

Commission not satisfied

(3) If, after reviewing the complaint, the Commission is not satisfied with the President of the Agency’s decision or report or considers that further inquiry is warranted, the Commission may

• (a) prepare and send to the President a report in writing setting out any findings it sees fit with respect to the decision or report and any recommendations it sees fit with respect to the complaint;

• (b) request that the President direct the Agency to investigate or further investigate the complaint; or

• (c) investigate or further investigate the complaint or institute a hearing to inquire into the complaint.

President’s response

51 (1) The President of the Agency shall, as soon as feasible after receiving a report referred to in paragraph 50(3)‍(a), provide the Commission with a written response indicating any further action that has been or will be taken with respect to the complaint. If the President decides not to act on any findings or recommendations set out in the report, he or she shall include in the response the reasons for not so acting.

Commission’s final report

(2) After considering the response, the Commission shall prepare a final report in writing setting out any findings and recommendations with respect to the complaint that it sees fit and shall send a copy of the report and a copy of the response to the President of the Agency, the complainant and the officer or employee whose conduct is the subject matter of the complaint.

Hearings

Hearing

52 (1) If the Commission decides, under section 45 or paragraph 50(3)‍(c), to institute a hearing to inquire into a complaint, the Chairperson of the Commission shall assign one or more members of the Commission to conduct the hearing and shall send a notice in writing of the decision to the Minister, the President of the Agency, the complainant and the officer or employee whose conduct is the subject matter of the complaint.

Commission

(2) For the purposes of subsections (3) to (11), the member or members of the Commission who are conducting the hearing are deemed to be the Commission.

Meaning of party

(3) In this section, party means the officer or employee designated by the President of the Agency for the purposes of this Part, the officer or employee whose conduct is the subject matter of the complaint or the complainant.

Notice

(4) The Commission shall serve on the parties a notice in writing of the time and place set for the hearing.

Sittings of Commission

(5) The Commission may sit at any place in Canada and at any time that it may fix, taking into account the convenience of the parties who wish to appear before it.

Hearings in public

(6) A hearing to inquire into a complaint shall be held in public but the Commission, on its own initiative or at the request of any party or witness, may order a hearing or any part of a hearing to be held in camera or ex parte if it is of the opinion

• (a) that information that could reasonably be expected to be injurious to national security, national defence or international relations will likely be disclosed during the course of the hearing;

• (b) that information that could reasonably be expected to compromise or seriously hinder the administration or enforcement of program legislation or the investigation or prosecution of any offence will likely be disclosed during the course of the hearing;

• (c) that information respecting a person’s financial or personal affairs, if that person’s interest or security outweighs the public’s interest in the information, will likely be disclosed during the course of the hearing;

• (d) that information that could reasonably be expected to reveal information that is subject to solicitor-client privilege or the professional secrecy of advocates and notaries or to litigation privilege, or information that is described in paragraph 25(b), will likely be disclosed during the course of the hearing; or

• (e) that it is otherwise required by the circumstances of the case.

Rights of persons interested

(7) The parties and any other person who satisfies the Commission that the person has a substantial and direct interest in a complaint before the Commission shall be allowed an opportunity, in person or by legal counsel, to present evidence, cross-examine witnesses and make representations at the hearing.

Representation of witnesses

(8) The Commission shall permit any person who gives evidence at a hearing to be represented by legal counsel.

Designated officer or employee

(9) The officer or employee designated by the President of the Agency for the purposes of this Part may be represented or assisted at a hearing by any other person.

Confidential communications

(10) If the officer or employee referred to in subsection (9) is represented or assisted by another person, communications passing in confidence between them in relation to the hearing are, for the purposes of this Part, privileged as if they were communications passing in professional confidence between the officer or employee and their legal counsel.

Expenses

(11) If the Commission sits at a place in Canada that is not the ordinary place of residence of the complainant, of the officer or employee whose conduct is the subject matter of the complaint or of the legal counsel of any of those persons, then that person or their legal counsel is entitled, at the discretion of the Commission, to receive, in accordance with Treasury Board directives, the travel and living expenses incurred by that person or their legal counsel in appearing before the Commission.

Suspension

Duty to suspend

53 (1) The Commission shall suspend an investigation, review or hearing with respect to a complaint if, in its opinion, continuing it would compromise or seriously hinder the administration or enforcement of program legislation or the investigation or prosecution of any offence.

Power to suspend

(2) The Commission may suspend an investigation, review or hearing with respect to a complaint if, in its opinion, continuing it would compromise or seriously hinder an ongoing civil or administrative proceeding.

Reports Following Investigation or Hearing

Interim report

54 (1) On completion of an investigation or a hearing, the Commission shall prepare and send to the President of the Agency a report in writing setting out any findings and recommendations with respect to the complaint that it sees fit.

President’s response

(2) The President of the Agency shall, as soon as feasible, provide the Chairperson of the Commission with a written response indicating any further action that has been or will be taken with respect to the complaint. If the President decides not to act on any findings or recommendations set out in the report, he or she shall include in the response the reasons for not so acting.

Commission’s final report

(3) After considering the response, the Commission shall prepare a final report in writing setting out any findings and recommendations with respect to the complaint that it sees fit and shall send a copy of the report and a copy of the response to the President of the Agency, the complainant and the officer or employee whose conduct is the subject matter of the complaint.

Final and conclusive

55 All of the findings and recommendations that are contained in the Commission’s final report under subsection 51(2) or 54(3) are final and are not subject to appeal to or review by any court.

Return of documents and things

56 Any document or thing that a person produced to the Agency or the Commission shall, on the request of the person, be released to that person within a reasonable time after the completion of the Commission’s final report.

Serious Incidents

Definitions

57 (1) The following definitions apply in this section and sections 58 to 60.

employee, in relation to the Agency, includes any person who assists the Agency in the exercise of any of its powers or the performance of any of its duties and functions under Part 1. (employé)

serious incident means an incident in which the actions of an officer or employee of the Agency in the exercise of their powers or the performance of their duties and functions under Part 1

• (a) may have resulted in serious injury to, or the death of, any person; or

• (b) may have constituted an offence under federal or provincial law that the Minister or the President of the Agency decides would be in the public interest to be investigated by the Agency. (incident grave)

serious injury means a prescribed physical or psychological injury. (blessure grave)

Regulations

(2) The Governor in Council may make regulations prescribing physical or psychological injuries for the purposes of the definition serious injury in subsection (1).

Notification

58 As soon as feasible after becoming aware that a serious incident is alleged to have occurred, the President of the Agency shall notify the police force that has jurisdiction at the location where it is alleged to have occurred — and the Commission — of the alleged serious incident.

Investigation

59 (1) Subject to subsection (2), after the President of the Agency becomes aware that a serious incident is alleged to have occurred, the Agency shall investigate the alleged serious incident.

Limit on investigation

(2) If the alleged serious incident involves the actions of one or more persons, the Agency shall not, in the investigation, investigate the actions of any person who assists the Agency in the exercise of any of its powers or the performance of any of its duties and functions under Part 1 by reason only of an agreement or arrangement referred to in subsection 13(3).

Copy of records

60 As soon as feasible after completing the investigation, the President of the Agency shall provide the Commission with a copy of any records in its possession relating to the investigation. The President shall also provide the Commission with a copy of any record in respect of every other lawfully authorized investigation conducted into the alleged serious incident that the Agency receives after the completion of its own investigation.

General

Delegation

61 The Chairperson of the Commission may delegate to the Vice-chairperson of the Commission or, if the office of Vice-chairperson is vacant, to any other member of the Commission any of the Chairperson’s powers, duties and functions under this Part, except the power to delegate under this section.

Technical assistance

62 The Commission may, with the approval of the Treasury Board,

• (a) engage, on a temporary basis, the services of persons having technical or specialized knowledge of any matter relating to the work of the Commission to advise and assist it in the exercise of its powers and the performance of its duties and functions under this Part; and

• (b) fix and pay the remuneration and expenses of persons engaged under paragraph (a).

No effect

63 The making of a complaint under section 32 or 38, the investigation into a complaint made under either of those sections or the review of a complaint under section 50 is not to

• (a) delay any investigation of an offence under an Act of Parliament or of the legislature of a province or prevent any such investigation from commencing;

• (b) delay an action taken under any program legislation or prevent any such action from being taken;

• (c) delay any removal proceedings or prevent the enforcement of any removal order;

• (d) delay any extradition proceedings or prevent the extradition of any individual to or from Canada; or

• (e) permit any individual to enter Canada or to remain in Canada beyond the end of the period for which they are authorized to so remain.

Right to be informed

64 Every person who is arrested or detained by an officer or employee of the Agency has a right to be informed, as soon as feasible, of their right to make a complaint under this Part and of how the complaint may be made and, if the person is subsequently detained on behalf of the Agency under an agreement or arrangement referred to in subsection 13(3), a right to be informed, as soon as feasible, of their right to make a complaint to the competent authority in the province where they are detained about their treatment while under detention and their conditions of detention, and of how the complaint may be made.

Joint reviews or joint investigations, reviews or hearings

65 (1) If a review conducted under section 18 or a complaint made under this Part concerns the detention of persons on behalf of the Agency under an agreement or arrangement referred to in subsection 13(3), the Commission may conduct that review, or an investigation, review or hearing of that complaint, as the case may be, jointly with any competent authority in the province where the persons are or were detained.

Regulations

(2) The Governor in Council may make regulations respecting reviews, or investigations, reviews or hearings, conducted jointly under subsection (1), including regulations respecting the entering into of agreements or arrangements — and the sharing of information — between the Commission and any competent authority referred to in that subsection for the purpose of the joint reviews or the joint investigations, reviews or hearings.

Offences

Attendance of witnesses, etc.

66 (1) Every person commits an offence punishable on summary conviction who

• (a) on being duly summoned as a witness or otherwise under this Part, fails to attend;

• (b) being in attendance as a witness in any proceeding,

  • (i) refuses to take an oath or solemn affirmation required of them,

  • (ii) refuses to produce any document or thing in their possession or under their control that is required to be produced by them, or

  • (iii) refuses to answer any question;

• (c) at any proceeding uses insulting or threatening language or causes any interference or disturbance; or

• (d) without lawful justification or excuse, prints or publishes observations or uses words in relation to an ongoing proceeding with intent to dissuade a witness in any proceeding from testifying.

Definition of proceeding

(2) In subsection (1), proceeding means any investigation or hearing conducted by the Commission with respect to a complaint made under this Part.‍ 

Punishment

(3) Every person who is convicted of an offence under subsection (1) is liable to a fine of not more than $5,000 or to imprisonment for a term of not more than six months, or to both.

Offences — harassment, obstruction, destroying documents etc.

67 (1) No person shall

• (a) harass, intimidate or threaten any person with the intent to compel that other person to abstain from making a complaint under this Part;

• (b) harass, intimidate or threaten

  • (i) an individual who makes a complaint under this Part,

  • (ii) an individual at whom the conduct that is the subject of a complaint made under this Part was directed,

  • (iii) a person who they have reasonable grounds to believe will be questioned or summoned by the Commission when it deals with a complaint made under this Part, or

  • (iv) a person who is exercising any power or performing any duty or function under this Part;

• (c) wilfully obstruct a person who is exercising any power or performing any duty or function under this Part, or knowingly make any false or misleading statement or knowingly provide false or misleading information to such a person;

• (d) destroy, mutilate, alter, falsify or conceal a document or thing, or make a false document or thing, knowing that the document or thing is likely to be relevant to an investigation of, or hearing to inquire into, a complaint made under this Part or to a review under this Part; or

• (e) direct, counsel or cause, in any manner, any person to do anything mentioned in any of paragraphs (a) to (d), or propose, in any manner, to any person that they do anything mentioned in any of those paragraphs.

Punishment

(2) Every person who contravenes subsection (1) is guilty of an offence and liable

• (a) on conviction on indictment, to imprisonment for a term of not more than five years; or

• (b) on summary conviction, to a fine of not more than $5,000 or to imprisonment for a term of not more than six months, or to both.

Offence — section 26 and subsection 28(3)

68 (1) Every person who contravenes section 26 or subsection 28(3) is guilty of an offence punishable on summary conviction and liable to a fine of not more than $5,000 or to imprisonment for a term of not more than six months, or to both.

Defence

(2) A person shall not be found guilty of an offence under subsection (1) if they establish that they exercised all due diligence to prevent the commission of the offence.

Limitation period

69 Summary conviction proceedings in respect of an offence under this Part may be instituted at any time within but not later than two years after the time when the subject matter of the proceedings arose.

• (a) the Public Complaints and Review Commission established by subsection 45.‍29(1) of the Royal Canadian Mounted Police Act;

• (a) in the case of information under the control of the Royal Canadian Mounted Police or the Canada Border Services Agency, the Public Complaints and Review Commission;

• (a) to the Public Complaints and Review Commission, information that is obtained from — or that is created by the Committee from information obtained from — the Royal Canadian Mounted Police or the Canada Border Services Agency and that is related to the fulfilment of that Commission’s mandate;

• (a) the Public Complaints and Review Commission established by subsection 45.‍29(1) of the Royal Canadian Mounted Police Act;

• (c) subsection 16(3) of the other Act is replaced by the following:

  • Review bodies informed of decision

    (3) The appropriate Minister must provide the decision and reasons to the National Security and Intelligence Review Agency and, in the case of information under the control of the Royal Canadian Mounted Police or the Canada Border Services Agency, to the Public Complaints and Review Commission.