Bill S-205
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1st Session, 42nd Parliament,
64 Elizabeth II, 2015
senate of canada
BILL S-205
An Act to amend the Canada Border Services Agency Act (Inspector General of the Canada Border Services Agency) 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:
2005, c. 38
CANADA BORDER SERVICES AGENCY ACT
1. Section 2 of the Canada Border Services Agency Act is amended by adding the following in alphabetical order:
“Inspector General”
« inspecteur général »
« inspecteur général »
“Inspector General” means the Inspector General of the Agency appointed under subsection 15.2(1).
2. The Act is amended by adding the following after section 15.1:
INSPECTOR GENERAL
Appointment and Powers
Appointment
15.2 (1) The Governor in Council shall appoint an Inspector General of the Agency after consultation with the leader of every recognized party in the Senate and House of Commons and approval of the appointment by resolution of the Senate and House of Commons.
Tenure
(2) The Inspector General holds office during good behaviour for a term of seven years, but may be removed for cause by the Governor in Council at any time on address of the Senate and House of Commons.
Further terms
(3) The Inspector General is eligible to be reappointed for one or more further terms of not more than seven years each.
Interim appointment
(4) In the event of the absence or incapacity of the Inspector General, or if that office is vacant, the Governor in Council may appoint any qualified person to hold that office in the interim for a term not exceeding six months, and that person shall, while holding office, be paid the salary or other remuneration and expenses that may be fixed by the Governor in Council.
Rank and powers
15.3 (1) The Inspector General has the rank and all the powers of a deputy head of a department.
Duties
(2) The Inspector General shall engage exclusively in the duties of the office of Inspector General under this Act and shall not hold any other office or engage in any other employment for reward.
Salary and expenses
(3) The Inspector General shall be paid the remuneration that is fixed by the Governor in Council, and is entitled to be paid reasonable travel and living expenses incurred in the performance of his or her duties while absent from his or her ordinary place of work.
Pension benefits
(4) The Inspector General is deemed to be employed in the public service for the purposes of the Public Service Superannuation Act.
Other benefits
(5) The Inspector General is deemed to be employed in the federal public administration for the purposes of the Government Employees Compensation Act and regulations made under section 9 of the Aeronautics Act.
Staff
Staff of the Inspector General
15.4 (1) The officers and employees necessary to enable the Inspector General to perform his or her powers, duties and functions under this Act shall be appointed in accordance with the Public Service Employment Act.
Technical assistance
(2) The Inspector General may engage, on a temporary basis, the services of persons having technical or specialized knowledge of any matter relating to the work of the Inspector General to advise and assist the Inspector General in the performance of his or her powers, duties and functions and, with the approval of the Treasury Board, may fix and pay the remuneration and expenses of those persons.
Delegation
(3) The Inspector General may authorize any person employed in his or her office to exercise and perform, in any manner and subject to any terms and conditions that he or she directs, any of the powers, duties and functions of the Inspector General.
Subdelegation
(4) Any person authorized under subsection (3) may, subject to and in accordance with the authorization, authorize one or more persons under that person’s jurisdiction to exercise any power or perform any function to which the authorization relates.
Mandate
Mandate
15.5 (1) The mandate of the Inspector General is
(a) to monitor and report on the activities of the Agency in carrying out its mandate under section 5, which may include making observations and recommendations concerning the procedures and performance of the Agency in relation to any of its activities, including:
(i) the making of decisions,
(ii) the handling of complaints,
(iii) the consistency of approach,
(iv) the exercise of enforcement powers, including powers of arrest, entry, search and seizure,
(v) the management of information and, where relevant, the direct or indirect provision of information to other organizations or persons in Canada or in a foreign state,
(vi) the respect for and protection of individual rights and freedoms of Canadian citizens and foreign nationals, and
(vii) the performance of the Agency compared to other organizations or persons with a similar mandate and similar powers in Canada or in foreign states; and
(b) to carry out investigations in relation to complaints made to the Inspector General under section 15.6.
Clarification
(2) For greater certainty, the mandate of the Inspector General in respect of the Agency extends to its officers, employees and agents.
Investigations
Investigation of complaints
15.6 (1) Any person may make a complaint to the Inspector General with respect to any act or thing done by the Agency and, subject to this section, the Inspector General shall investigate the complaint.
Written complaint
(2) A complaint shall be in writing unless the Inspector General authorizes otherwise.
Procedure
(3) Subject to this Act, the Inspector General may determine the procedure to be followed in carrying out an investigation under this Act.
Discontinuance of investigation
(4) If, in the course of investigating any complaint, the Inspector General is of the opinion that, having regard to all the circumstances of the case, any further investigation is unnecessary, the Inspector General may refuse to investigate the matter further.
Refuse or cease investigation
(5) The Inspector General may refuse to investigate or cease to investigate any complaint if, in the opinion of the Inspector General,
(a) the complaint is trivial, frivolous, vexatious or made in bad faith; or
(b) the subject-matter of the complaint does not come within the authority of the Inspector General under this Act.
Complainant to be notified
(6) If the Inspector General decides to refuse to investigate or cease to investigate a complaint under subsection (4) or (5), the Inspector General shall inform the complainant of that decision and the reasons for it.
Notice of intention to investigate
15.7 Before commencing an investigation of a complaint, the Inspector General shall inform the complainant and shall notify the Minister and the President of his or her intention to carry out the investigation and inform them of the subject-matter of the complaint.
Investigations in private
15.8 (1) Every investigation of a complaint under this Act by the Inspector General shall be conducted in private.
Right to make representations
(2) In the course of an investigation of a complaint by the Inspector General, the complainant and the President shall be given an opportunity to make representations to the Inspector General, to present evidence and to be heard personally, by counsel or by any other representative, but no one is entitled as of right to be present during, to have access to or to comment on representations made to the Inspector General by any other person.
Powers of Inspector General
15.9 The Inspector General has, in relation to the investigation of any complaint under this Act, power
(a) to summon and enforce the appearance of persons before the Inspector General and to compel them to give oral or written evidence on oath and to produce any documents or things that the Inspector General considers necessary for the full investigation and consideration of the complaint in the same manner and to the same extent as a superior court of record;
(b) to administer oaths; and
(c) to receive and accept any evidence and other information, on oath or by affidavit or otherwise, that the Inspector General sees fit, whether or not that evidence or information is or would be admissible in a court of law.
Evidence in other proceedings
15.10 Except in a prosecution of a person for an offence under section 131 of the Criminal Code (perjury) in respect of a statement made under this Act, evidence given by a person in proceedings under this Act and evidence of the existence of the proceedings are inadmissible against that person in a court or in any other proceedings.
Findings and recommendations of Inspector General
15.11 (1) If, on investigating a complaint under this Act, the Inspector General finds that the complaint is well-founded, the Inspector General shall provide the Minister and the President with a report containing
(a) the findings of the investigation and any recommendations that the Inspector General considers appropriate; and
(b) where appropriate, a request that, within a specified time, notice be given to the Inspector General of any action taken or proposed to be taken to implement the recommendations contained in the report or reasons why no such action has been or is proposed to be taken.
Report to complainant
(2) The Inspector General shall, after investigating a complaint under this Act, report to the complainant the results of the investigation, but where a notice has been requested under paragraph (1)(b) no report shall be made under this subsection until the expiration of the time within which the notice is to be given to the Inspector General.
Matter to be included in report to complainant
(3) Where a notice has been requested under paragraph (1)(b) but no such notice is received by the Inspector General within the time specified for such notice or the action described in the notice is, in the opinion of the Inspector General, inadequate or inappropriate or will not be taken within a reasonable time, the Inspector General shall so advise the complainant in the report under subsection (2) and may include in the report any comments on the matter that he or she considers appropriate.
Reports to Parliament
Inspector General’s report
15.12 (1) Within three months after the end of each fiscal year, the Inspector General shall submit to the Minister a report on the Inspector General’s activities for that fiscal year.
Special report
(2) The Inspector General may, at any time, submit to the Minister a special report referring to and commenting on any matter within the scope of the powers, duties and functions of the Inspector General where, in his or her opinion, the matter is of such urgency or importance that a report on it should not be deferred until the next annual report.
Submission and tabling of report
(3) The Minister shall cause a copy of a report received under subsection (1) or (2) to be laid before each House of Parliament on any of the first 15 days on which that House is sitting after the Minister receives the report.
General Provisions
Access to information
15.13 Despite any other Act of Parliament, the Inspector General is entitled to have access to any information under the control of the Agency that relates to the performance of the powers, duties and functions of the Inspector General and to receive from the Agency any information, reports and explanations that the Inspector General considers necessary for the performance of those duties and functions.
Security requirements
15.14 The Inspector General and every person acting on behalf or under the direction of the Inspector General who receives or obtains information under this Act shall, with respect to access to and the use of that information, satisfy any security requirements applicable to, and take any oath of secrecy required to be taken by, persons who normally have access to and use of that information.
Confidentiality
15.15 Unless the disclosure is required by law or permitted by this Act, the Inspector General and every person acting on behalf or under the direction of the Inspector General shall not disclose any information that comes to their knowledge in the performance of their powers, duties and functions under this Act.
Disclosure not waiver
15.16 The disclosure of information to the Inspector General under this Act does not, by itself, constitute a waiver of any privilege that may exist with respect to the information.
Protection of confidential information
15.17 (1) The Inspector General shall consult with the Minister in order to ensure compliance with section 15.14 in preparing any report made under this Act.
Information not to be disclosed
(2) Subject to subsections (3) and (4), the Inspector General and any person acting on behalf or under the direction of the Inspector General shall not disclose any information that the Agency or the Government of Canada or any portion of the public sector is taking measures to protect, including, but not limited to, information that
(a) is a confidence of the Queen’s Privy Council for Canada in respect of which subsection 39(1) of the Canada Evidence Act applies;
(b) is subject to solicitor-client privilege;
(c) is special operational information within the meaning of subsection 8(1) of the Security of Information Act;
(d) is subject to any restriction on disclosure created by or under any other Act of Parliament;
(e) could reasonably be expected to cause injury to international relations, national defence or national security, or to the detection, prevention or suppression of criminal, subversive or hostile activities;
(f) could reasonably be expected to cause injury to the privacy interests of an individual; or
(g) could reasonably be expected to cause injury to commercial interests.
Exception – previously disclosed information or consent
(3) The Inspector General may disclose any information referred to in subsection (2) if it has already been disclosed following a request under the Access to Information Act or with the consent of the relevant individual or an authorized person in the organization that has a primary interest in the information.
Exception — disclosure necessary
(4) The Inspector General may disclose any information referred to in subsection (2) if, in his or her opinion,
(a) the disclosure is necessary to carry out the powers, duties and functions of the Inspector General, to establish the grounds for any finding or recommendation in a report under section 15.11 or to make a report under section 15.12; and
(b) the public interest in making the disclosure clearly outweighs the potential harm from the disclosure.
Compliance and consultation
(5) Before disclosing any information as permitted by subsection (4), the Inspector General shall
(a) comply with subsection 38.02(1.1) of the Canada Evidence Act; and
(b) except for information that only affects the privacy interests of an individual, consult with the organization that has a primary interest in the information.
No summons
15.18 In respect of any matter coming to the knowledge of the Inspector General or any person acting on behalf or under the direction of the Inspector General as a result of performing any powers, duties or functions conferred on them under this Act, neither the Inspector General nor that person is a competent or compellable witness in any proceedings other than
(a) proceedings commenced under section 15.22; or
(b) a prosecution for an offence under this Act or an offence under section 131 of the Criminal Code (perjury) in respect of a statement made under this Act.
Protection of Inspector General
15.19 No criminal or civil proceedings lie against the Inspector General, or against any person acting on behalf or under the direction of the Inspector General, for anything done — or omitted to be done — or reported or said in good faith in the course of the actual or purported exercise or performance of any power, duty or function of the Inspector General.
Offences
Obstruction
15.20 (1) No person shall obstruct the Inspector General or any person acting on behalf or under the direction of the Inspector General in the performance of the Inspector General’s powers, duties and functions.
Offence and punishment
(2) Every person who contravenes subsection (1) is guilty of an offence and liable on summary conviction to a fine not exceeding $1,000.
Court Remedy
Definition of “Court”
15.21 In sections 15.22 to 15.26, “Court” means the Federal Court.
Application for remedy
15.22 (1) Any person who has made a complaint to the Inspector General under section 15.6 may apply to the Court for a remedy.
Limitation period
(2) An application may be made under subsection (1) within 60 days after
(a) the results of an investigation of the complaint by the Inspector General are reported to the complainant under subsection 15.11(2); or
(b) the complainant is informed of the Inspector General’s decision to refuse or cease to investigate the complaint under subsection 15.6(6).
Extension of time
(3) The Court may extend the time for making an application under subsection (1), either before or after the end of the 60 day period.
Application six months after complaint
(4) Where a complaint is made to the Inspector General under this Act but the complainant is not informed of the results of the investigation of the complaint under subsection 15.11(2) or of a decision referred to in subsection 15.6(6) within six months after the complaint is made, the complainant may make an application under subsection (1) at any time after the end of that six month period.
Order of Court
(5) Where, in proceedings under subsection (1), the Court concludes that the Agency has failed to comply with this Act, the Court may grant any remedy that it considers appropriate and just in the circumstances.
Other rights of action
(6) Nothing in this section abrogates or derogates from any right of action a person might have other than the right of action set out in this section.
Inspector General may apply or appear
15.23 (1) The Inspector General may
(a) within the time limits prescribed by subsection 15.22(2), apply to the Court for a remedy under this Act in relation to a complaint investigated by the Inspector General if the Inspector General has the consent of the complainant;
(b) appear before the Court on behalf of any person who has applied under section 15.22 for a remedy under this Act; or
(c) with leave of the Court, appear as a party to any proceedings commenced under section 15.22.
Complainant may appear as party
(2) Where the Inspector General makes an application under paragraph (1)(a), the complainant may appear as a party to any proceedings resulting from the application.
Capacity to intervene
(3) Nothing in this section abrogates or derogates from the capacity of the Inspector General to seek leave to intervene in any adjudicative proceedings relating to the Agency's activities or mandate.
Evidence relating to similar complaint
15.24 In proceedings under this Act relating to a complaint against the Agency, the Court may admit as evidence information relating to any similar complaint under this Act.
Hearing in summary manner
15.25 An application made under section 15.22 shall be heard and determined in a summary manner in accordance with any special rules made in respect of such applications pursuant to section 46 of the Federal Courts Act.
Costs
15.26 (1) Subject to subsection (2), the costs of and incidental to all proceedings in the Court under this Act shall be in the discretion of the Court and shall follow the event unless the Court orders otherwise.
New principle
(2) Where the Court is of the opinion that an application under section 15.22 has raised an important new principle in relation to the mandate of the Agency, the Court shall order that costs be awarded to the applicant even if the applicant has not been successful in the result.
CONSEQUENTIAL AMENDMENTS
R.S., c. A-1
Access to Information Act
3. Subsection 16.1(1) of the Access to Information Act is amended by adding the following after paragraph (b):
(b.1) the Inspector General of the Canada Border Services Agency;
4. Schedule I to the Act is amended by adding the following in alphabetical order under the heading “OTHER GOVERNMENT INSTITUTIONS”:
Office of the Inspector General of the Canada Border Services Agency
Bureau de l’inspecteur général de l’Agence des services frontaliers du Canada
R.S., c. C-5
Canada Evidence Act
5. The schedule to the Canada Evidence Act is amended by adding the following after item 22 under the heading “DESIGNATED ENTITIES”:
23. The Inspector General of the Canada Border Services Agency, for the purposes of the Canada Border Services Agency Act.
R.S., c. F-11
Financial Administration Act
6. Schedule I.1 to the Financial Administration Act is amended by adding, in alphabetical order in column I, a reference to
Office of the Inspector General of the Canada Border Services Agency
Bureau de l’inspecteur général de l’Agence des services frontaliers du Canada
and a corresponding reference in column II to the “Minister of Public Safety and Emergency Preparedness”.
7. Schedule IV to the Act is amended by adding the following in alphabetical order:
Office of the Inspector General of the Canada Border Services Agency
Bureau de l’inspecteur général de l’Agence des services frontaliers du Canada
R.S., c. P-21
Privacy Act
8. The schedule to the Privacy Act is amended by adding the following in alphabetical order under the heading “OTHER GOVERNMENT INSTITUTIONS”:
Office of the Inspector General of the Canada Border Services Agency
Bureau de l’inspecteur général de l’Agence des services frontaliers du Canada
R.S., c. 31 (4th Supp.)
Official Languages Act
9. Subsection 24(3) of the Official Languages Act is amended by striking out “and” at the end of paragraph (e), by adding “and” at the end of paragraph (f) and by adding the following after paragraph (f):
(g) the Office of the Inspector General of the Canada Border Services Agency.
1991, c. 30
Public Sector Compensation Act
10. Schedule I to the Public Sector Compensation Act is amended by adding the following in alphabetical order under the heading “OTHER PORTIONS OF THE PUBLIC SERVICE”:
Office of the Inspector General of the Canada Border Services Agency
Bureau de l’inspecteur général de l’Agence des services frontaliers du Canada
2005, c. 46
Public Servants Disclosure Protection Act
11. Schedule 2 to the Public Servants Disclosure Protection Act is amended by adding the following in alphabetical order:
Office of the Inspector General of the Canada Border Services Agency
Bureau de l’inspecteur général de l’Agence des services frontaliers du Canada
COMING INTO FORCE
Coming into force
12. (1) Subject to subsection (2), this Act comes into force on a day to be fixed by order of the Governor in Council.
Royal recommendation
(2) No order may be made under subsection (1) unless the appropriation of moneys for the purposes of this Act has been recommended by the Governor General and such moneys have been appropriated by Parliament.
Published under authority of the Senate of Canada
Explanatory Notes
Canada Border Services Agency Act
Clause 1: New.
Clause 2: New.
Access to Information Act
Clause 3: New.
Clause 4: New.
Canada Evidence Act
Clause 5: New.
Financial Administration Act
Clause 6: New.
Clause 7: New.
Privacy Act
Clause 8: New.
Official Languages Act
Clause 9: Relevant portion of subsection 24(3):
(3) Without restricting the generality of subsection (2), the duty set out in that subsection applies in respect of
. . .
(e) the Office of the Privacy Commissioner; and
(f) the Office of the Commissioner of Lobbying.
Public Sector Compensation Act
Clause 10: New.
Public Servants Disclosure Protection Act
Clause 11: New.