Bill C-60

2nd Session, 40th Parliament,

57-58 Elizabeth II, 2009

house of commons of canada

BILL C-60

An Act to implement the Framework Agreement on Integrated Cross-Border Maritime Law Enforcement Operations between the Government of Canada and the Government of the United States of America

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

SHORT TITLE

1. This Act may be cited as the Keeping Canadians Safe (Protecting Borders) Act.

INTERPRETATION

2. The following definitions apply in this Act.

“Agreement” means the Framework Agreement on Integrated Cross-Border Maritime Law Enforcement Operations between the Government of Canada and the Government of the United States of America signed on May 26, 2009.

“Commission” means the Royal Canadian Mounted Police Public Complaints Commission established by section 45.29 of the Royal Canadian Mounted Police Act.

“designated officer” means an individual appointed as a cross-border maritime law enforcement officer by

(a) the Central Authority for Canada under subsection 7(1) or 8(1); and

(b) the person designated as the Central Authority for the United States for the application of the Agreement.

“integrated cross-border operation” means the deployment of a vessel crewed jointly by designated officers from Canada and the United States for cross-border law enforcement purposes in undisputed areas of the sea or internal waters along the international boundary between Canada and the United States.

“Minister” means the Minister of Public Safety and Emergency Preparedness.

PURPOSE

3. The purpose of this Act is to implement the Agreement, the objectives of which are to provide additional means to prevent, detect and suppress criminal offences and violations of the law in undisputed areas of the sea or internal waters along the international boundary between Canada and the United States and to facilitate the investigation and prosecution of such offences and violations.

PRINCIPLES

4. It is recognized and declared that

(a) Canada and the United States have a common interest in the security of the undisputed areas of the sea or internal waters along the international boundary between Canada and the United States;

(b) integrated cross-border operations must

(i) respect the sovereignty of Canada and the United States,

(ii) be conducted in accordance with the rule of law, and

(iii) be intelligence-driven, based on threat and risk assessments conducted jointly by Canada and the United States and coordinated with existing cooperative cross-border policing programs and activities; and

(c) in Canada, integrated cross-border operations must be conducted in a manner respecting the rights and freedoms guaranteed by the Canadian Charter of Rights and Freedoms.

CENTRAL AUTHORITY FOR CANADA

5. For the purposes of implementing the Agreement, the Central Authority for Canada is the Commissioner of the Royal Canadian Mounted Police, or, other than for the purposes of subsections 17(2) and 24(1) and (2), his or her delegate.

6. The Central Authority for Canada has, in cooperation with the person designated as the Central Authority for the United States for the purposes of implementing the Agreement, responsibility for the direction and management of integrated cross-border operations.

7. (1) The Central Authority for Canada may appoint as a cross-border maritime law enforcement officer an individual who is

(a) a member of the Royal Canadian Mounted Police;

(b) a police officer appointed or employed under the law of a province; or

(c) a pilot, co-pilot, observer or other member of the crew of an aircraft that is operated by the Royal Canadian Mounted Police or a police service established under the law of a province and that is used to provide aerial support in an integrated cross-border operation.

(2) An individual may only be appointed under subsection (1) if they have satisfactorily completed the required training, approved by the Central Authority for Canada, for appointment as a designated officer.

8. (1) The Central Authority for Canada may appoint as a cross-border maritime law enforcement officer an individual who is

(a) a commissioned, warrant or petty officer of the United States Coast Guard;

(b) a police officer or other law enforcement officer appointed or employed under the law of the United States or of a state of the United States; or

(c) a pilot, co-pilot, observer or other member of the crew of an aircraft that is operated by the United States Coast Guard or a police service, or other law enforcement agency of the United States or of a state of the United States, and that is used to provide aerial support in an integrated cross-border operation.

(2) An individual may only be appointed under subsection (1) if

(a) they have been recommended for appointment by the person designated as the Central Authority for the United States for the application of the Agreement; and

(b) they have satisfactorily completed the required training, approved by the Central Authority for Canada, for appointment as a designated officer.

9. The Central Authority for Canada may suspend or revoke the appointment of any designated officer.

10. The Central Authority for Canada may recommend, to the person designated as the Central Authority for the United States for the purposes of implementing the Agreement, that an individual described in paragraph 7(1)(a), (b) or (c) be appointed as a cross-border maritime law enforcement officer in the United States.

POWERS OF DESIGNATED OFFICERS

11. In the course of an integrated cross-border operation, every designated officer is a peace officer in every part of Canada and has the same power to enforce an Act of Parliament as a member of the Royal Canadian Mounted Police.

DETENTION OF PERSONS

12. (1) The laws of Canada apply to any person detained or taken into custody within Canada in the course of an integrated cross-border operation.

(2) No person referred to in subsection (1) may be removed from Canada, except in accordance with the laws of Canada.

SEIZURE

13. (1) The laws of Canada apply to any vessel or other thing seized within Canada in the course of an integrated cross-border operation.

(2) Subject to subsection (3), no vessel or other thing referred to in subsection (1) may be removed from Canada, except in accordance with the laws of Canada.

(3) A vessel or other thing referred to in subsection (1) may be removed from Canada in situations of operational or geographical necessity, including situations in which

(a) before delivering the vessel or thing to the place where it is to be delivered in Canada, designated officers are required to participate in a continuing integrated cross-border operation or respond to an emergency in the waters of the United States;

(b) due to poor weather or mechanical difficulties with a vessel operated by designated officers, it is necessary to transit through the waters of the United States in order to reach the nearest port; or

(c) the navigable shipping channels between the location in Canada where the vessel or thing was seized and the place where the vessel or thing is to be delivered in Canada pass through the waters of the United States.

14. A vessel or other thing seized in the United States in the course of an integrated cross-border operation remains in the custody and control of the American designated officer if it is brought into Canada in situations of operational or geographical necessity, including situations in which

(a) before delivering the vessel or thing to the place where it is to be delivered in the United States, designated officers are required to participate in a continuing integrated cross-border operation or respond to an emergency in the waters of Canada;

(b) due to poor weather or mechanical difficulties with a vessel operated by designated officers, it is necessary to transit through the waters of Canada in order to reach the nearest port; or

(c) the navigable shipping channels between the location in the United States where the vessel or thing was seized and the place where the vessel or thing is to be delivered in the United States pass through the waters of Canada.

15. No Act of Parliament relating to the import or export of goods applies to the import or export of a vessel or other thing by a designated officer in the circumstances described in subsection 13(3) or section 14.

PUBLIC COMPLAINTS

16. (1) Any member of the public having a complaint concerning the conduct of any designated officer in the performance of any duty or function in the course of an integrated cross-border operation may make a complaint to the Commission, whether or not that member of the public is affected by the subject matter of the complaint.

(2) The Commission must acknowledge the receipt of every complaint under subsection (1) in writing.

(3) The Commission must notify the Central Authority for Canada of every complaint made under subsection (1).

(4) On being notified of a complaint under subsection (3), the Central Authority for Canada must notify, in writing, the designated officer whose conduct is the subject matter of the complaint of the substance of the complaint.

17. (1) The Central Authority for Canada must consider whether a complaint under subsection 16(1) can be disposed of informally and, with the consent of the complainant and the designated officer whose conduct is the subject matter of the complaint, may attempt to so dispose of the complaint.

(2) The Central Authority for Canada may make rules relating to the informal disposition of complaints made under subsection 16(1).

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

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

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

(4) If a complaint is disposed of informally, a record is to be made of the manner in which the complaint was disposed of, the complainant’s agreement to the disposition must be signified in writing by the complainant and the designated officer whose conduct is the subject matter of the complaint must be informed of the disposition.

(5) If a complaint is not disposed of informally, the Central Authority for Canada must give notice in writing to the complainant of their right to refer the complaint to the Commission for review and must send a copy of the notice to the designated officer whose conduct is the subject matter of the complaint.

(6) Despite any other provision of this Act, the Central Authority for Canada may direct that no attempt to dispose of a complaint informally be commenced or that such an attempt be terminated if, in the opinion of the Central Authority for Canada,

(a) the complaint is one that could more appropriately be dealt with, initially or completely, according to a procedure provided under any other Act of Parliament;

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

(c) having regard to all the circumstances, such an attempt is not necessary or reasonably practicable.

(7) If the Central Authority for Canada makes a direction in respect of a complaint under subsection (6), the Central Authority must give notice in writing to the complainant and the designated officer whose conduct is the subject matter of the complaint of the direction, the reasons for it and the right of the complainant to refer the complaint to the Commission for review if the complainant is not satisfied with the direction.

18. (1) A complainant under subsection 16(1) whose complaint is not disposed of informally or who is not satisfied with a direction made under subsection 17(6) in respect of the complaint may refer the complaint in writing to the Commission for review.

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

(a) the Commission Chairman must furnish the Central Authority for Canada with a copy of the complaint; and

(b) the Central Authority for Canada must furnish the Commission Chairman with the notice in respect of the complaint under subsection 17(5) or (7), as the case may be, and any other materials under the control of the Central Authority for Canada that are relevant to the complaint.

19. (1) The Commission Chairman must review every complaint referred to the Commission under subsection 18(1) unless the Commission Chairman has previously investigated, or instituted a hearing to inquire into, the complaint under section 21.

(2) If, after reviewing a complaint, the Commission Chairman is satisfied with the disposition of the complaint by the Central Authority for Canada under subsection 17(6), the Commission Chairman must prepare and send a report in writing to that effect to the Minister, the Central Authority for Canada, the complainant and the designated officer whose conduct is the subject matter of the complaint.

(3) After reviewing a complaint, the Commission Chairman may, unless satisfied with the disposition of the complaint by the Central Authority for Canada under subsection 17(6),

(a) prepare and send to the Minister and the Central Authority for Canada a report in writing setting out any findings and recommendations with respect to the complaint that the Commission Chairman sees fit;

(b) investigate the complaint; or

(c) institute a hearing to inquire into the complaint.

(4) An investigation under paragraph (3)(b) may be carried out jointly with a body designated by the Commission Chairman.

20. (1) If the Commission Chairman is satisfied that there are reasonable grounds to investigate the conduct of any designated officer in the performance of any duty or function in the course of an integrated cross-border operation, the Commission Chairman may initiate a complaint in relation to that conduct.

(2) The Commission Chairman must notify the Minister and the Central Authority for Canada of any complaint initiated under subsection (1).

(3) On being notified of a complaint under subsection (2), the Central Authority for Canada must notify in writing the designated officer whose conduct is the subject matter of the complaint of the substance of the complaint.

(4) After initiating a complaint, the Commission Chairman may

(a) investigate the complaint; or

(b) institute a hearing to inquire into the complaint.

(5) An investigation under paragraph (4)(a) may be carried out jointly with a body designated by the Commission Chairman.

21. (1) If the Commission Chairman considers it advisable in the public interest, the Commission Chairman may investigate, or institute a hearing to inquire into, a complaint concerning the conduct of any designated officer in the performance of any duty or function in the course of an integrated cross-border operation whether or not the complaint has been reported on or otherwise dealt with under this Act.

(2) On completion of an investigation under subsection (1) or paragraph 19(3)(b) or 20(4)(a), the Commission Chairman must prepare and send to the Minister and the Central Authority for Canada a report in writing setting out any findings and recommendations with respect to the complaint that the Commission Chairman sees fit unless the Commission Chairman has instituted, or intends to institute, a hearing to inquire into the complaint under subsection (1) or paragraph 19(3)(c) or 20(4)(b).

22. If the Commission Chairman decides to institute a hearing to inquire into a complaint under paragraph 19(3)(c) or 20(4)(b) or subsection 21(1), the Commission Chairman must assign one or more members of the Commission to conduct the hearing and send a notice in writing of the decision to the Minister, the Central Authority for Canada, the designated officer whose conduct is the subject matter of the complaint and, in the case of a complaint under subsection 16(1), the complainant.

23. (1) For the purposes of this section, the member or members conducting a hearing to inquire into a complaint are deemed to be the Commission.

(2) The Commission must serve a notice in writing of the time and place appointed for a hearing on the parties.

(3) If a party wishes to appear before the Commission, the Commission is to sit at any place in Canada and at any time that may be fixed by the Commission, having regard to the convenience of the parties.

(4) The Commission has, in relation to the complaint before it, the powers conferred on a board of inquiry, in relation to the matter before it, by paragraphs 24.1(3)(a) to (c) of the Royal Canadian Mounted Police Act.

(5) 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 must be afforded a full and ample opportunity, in person or by counsel, to present evidence, to cross-examine witnesses and to make representations at the hearing.

(6) The Commission must permit any person who gives evidence at a hearing to be represented by counsel.

(7) Despite subsection (4), the Commission may not receive or accept

(a) subject to subsection (8), any evidence or other information that would be inadmissible in a court of law by reason of any privilege under the law of evidence;

(b) any answer or statement made in response to a question described in subsection 24.1(7), 35(8), 40(2), 45.1(11), 45.22(8) or 45.45(9) of the Royal Canadian Mounted Police Act;

(c) any answer or statement made in response to a question described in subsection (8) in any hearing under this section into any other complaint; or

(d) any answer or statement made in the course of attempting to dispose of a complaint under section 17.

(8) In a hearing, a witness is not to be excused from answering any question or producing any document or thing relating to the complaint before the Commission when required to do so by the Commission on the ground that the answer to the question or the document or thing produced may tend to incriminate the witness or subject the witness to any proceeding or penalty.

(9) An answer or statement made, or document or thing produced, in response to a question described in subsection (8), or evidence derived from that evidence, may only be used or received against the witness in

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

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

(10) A hearing to inquire into a complaint must be held in public, except that the Commission may order the hearing or any part of the hearing to be held in private if it is of the opinion that during the course of the hearing any of the following information will likely be disclosed:

(a) information the disclosure of which could reasonably be expected to be injurious to international relations, the defence of Canada or any state allied or associated with Canada or the detection, prevention or suppression of subversive or hostile activities;

(b) information the disclosure of which could reasonably be expected to be injurious to law enforcement; and

(c) information respecting a person’s financial or personal affairs if that person’s interest or security outweighs the public’s interest in the information.

(11) Any document or thing produced under this section to the Commission must, on the request of the person producing the document or thing, be released to that person within a reasonable time after completion of the final report under subsection 24(3).

(12) If the Commission sits at a place in Canada that is not the ordinary place of residence of the designated officer whose conduct is the subject matter of the complaint, of the complainant or of the counsel of that designated officer or that complainant, that designated officer, complainant or counsel is entitled, in the discretion of the Commission, to receive any travel and living expenses incurred by the designated officer, complainant or counsel in appearing before the Commission that may be fixed by the Treasury Board.

(13) On completion of a hearing, the Commission must prepare and send to the Minister and the Central Authority for Canada a written report setting out the Commission’s findings and recommendations with respect to the complaint.

(14) In this section and section 24, “parties” means the designated officer whose conduct is the subject matter of a complaint and, in the case of a complaint under subsection 16(1), the complainant.

24. (1) On receipt of a report under paragraph 19(3)(a) or subsection 21(2) or 23(13), the Central Authority for Canada must review the complaint in light of the findings and recommendations set out in the report.

(2) After reviewing a complaint in accord- ance with subsection (1), the Central Authority for Canada must notify the Minister and the Commission Chairman in writing of any action that has been or will be taken with respect to the complaint, and if the Central Authority decides not to act on any findings or recommendations set out in the report, the Central Authority must include in the notice the reasons for not so acting.

(3) After considering a notice under subsection (2), the Commission Chairman must prepare and send to the Minister, the Central Authority for Canada and the parties a final report in writing setting out any findings and recommendations with respect to the complaint that the Commission Chairman sees fit.

25. The Central Authority for Canada must

(a) establish and maintain a record of all complaints received by the Central Authority for Canada under this Act; and

(b) on request, make available to the Commission any information contained in the record.

CONSEQUENTIAL AMENDMENTS

Criminal Code

26. The definition “peace officer” in section 2 of the Criminal Code is amended by adding the following after paragraph (c):

Customs Act

27. Paragraphs 11(6)(a) and (b) of the Customs Act are replaced by the following:

(a) holds an authorization issued by the Minister under subsection 11.1(1) to present himself or herself in a prescribed alternative manner and who presents himself or herself in the manner authorized for that person; or

(b) is a member of a prescribed class of persons authorized by regulations made under subsection 11.1(3) to present himself or herself in a prescribed alternative manner and who presents himself or herself in the manner authorized for that class.

28. Paragraph 11.1(3)(a) of the Act is replaced by the following:

(a) prescribing classes of persons who are, and classes of persons who may be, authorized to present themselves in alternative manners;

Export and Import Permits Act

29. Section 12 of the Export and Import Permits Act is amended by striking out “and” at the end of paragraph (e) and by adding the following after that paragraph:

Immigration and Refugee Protection Act

30. Section 26 of the Immigration and Refugee Protection Act is amended by adding the following after paragraph (a):

Royal Canadian Mounted Police Act

31. Section 45.32 of the Royal Canadian Mounted Police Act is replaced by the following:

45.32 (1) The Commission shall carry out the functions and duties that are assigned to it by this Act and the Keeping Canadians Safe (Protecting Borders) Act.

(2) The Commission Chairman shall carry out the functions and duties that are assigned to the Commission Chairman by this Act and the Keeping Canadians Safe (Protecting Borders) Act.

32. Paragraphs 45.33(b) to (d) of the Act are replaced by the following:

(b) the manner of dealing with matters and business before the Commission under this Act and the Keeping Canadians Safe (Protecting Borders) Act generally, including the practice and procedure before the Commission;

(c) the apportionment of the work of the Commission among its members and the assignment of members to review complaints referred to the Commission under this Act and the Keeping Canadians Safe (Protecting Borders) Act; and

(d) the performance of the duties and functions of the Commission under this Act and the Keeping Canadians Safe (Protecting Borders) Act generally.

COMING INTO FORCE

33. The provisions of this Act come into force on a day or days to be fixed by order of the Governor in Council.