Canada Border Services Agency Act (S.C. 2005, c. 38)

AMENDMENTS NOT IN FORCE

• — 2024, c. 25, s. 108

  • 108 Section 2 of the Canada Border Services Agency Act is amended by adding the following in alphabetical order:

    Commission

    Commission means the Public Complaints and Review Commission established by subsection 3(1) of the Public Complaints and Review Commission Act. (Commission)

• — 2024, c. 25, s. 109

  • 109 Subsection 9(1) of the Act is replaced by the following:

    • Delegation by President

      • 9 (1) Subject to subsection (1.1), the President may delegate to any person any power, duty or function that the President is authorized to exercise or perform under this Act or any other enactment.

      • Exception

        (1.1) The President shall not delegate the power to make rules under section 39 of the Public Complaints and Review Commission Act and the power to enter into a memorandum of understanding under subsection 17(7) of that Act.

• — 2024, c. 25, s. 110

  • 110 Section 13 of the Act is amended by adding the following after subsection (2):

    • 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 Minister’s approval, 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 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 with a copy of every document containing findings or recommendations that it receives under that agreement or arrangement.

• — 2024, c. 25, s. 111

  • 111 The Act is amended by adding the following after section 14:

    Serious Incidents

    • Definitions

      • 14.1 (1) The following definitions apply in this section and sections 14.2 to 14.9.

        employee

        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 this Act. (employé)

        serious incident

        serious incident means an incident in which the actions of an officer or employee of the Agency in the exercise of its powers or the performance of its duties and functions under this Act

        • (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 decides would be in the public interest to be investigated by the Agency. (incident grave)

        serious injury

        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

      14.2 As soon as feasible after becoming aware that a serious incident is alleged to have occurred, the President 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

      • 14.3 (1) Subject to subsection (2), as soon as feasible after the President 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 this Act by reason only of an agreement or arrangement referred to in subsection 13(3).

    • Copy of records

      14.4 As soon as feasible after completing the investigation, the President 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.

    • Observer

      • 14.5 (1) The Agency shall permit an observer appointed by the Commission under subsection (2) to assess the impartiality of the investigation.

      • Appointment of observer

        (2) The Commission may appoint an observer to assess the impartiality of the investigation.

      • Observers are compellable

        (3) Despite subsection 11(3) of the Public Complaints and Review Commission Act, but subject to section 14.8(1), every observer is a compellable witness in every criminal, civil or administrative action or proceeding, or inquiry, in respect of any matter coming to the knowledge of the observer as a result of exercising a power or performing a duty or function under this Part.

      • No observer appointed

        (4) If no observer is appointed to an investigation of a serious incident under subsection (2), the President shall provide the Chairperson of the Commission with a report that sets out all measures that have been or will be taken by the Agency to ensure the impartiality of the investigation.

    • Recommendations

      14.6 If the observer has concerns with the impartiality of the investigation, the observer may inform the Agency of their concerns and may make any recommendations to the Agency that they consider appropriate to address those concerns.

    • Report

      • 14.7 (1) The observer shall, in accordance with the regulations, provide a report respecting the impartiality of the investigation of a serious incident to the Chairperson of the Commission and the President.

      • Response

        (2) If the observer’s report identifies concerns with respect to the impartiality of an investigation, the President shall provide to the Chairperson of the Commission a written response to the observer’s report that includes a description of what actions have or will be taken by the Agency to address those concerns.

      • Report on response

        (3) If the Chairperson of the Commission is not satisfied with the response of the President, the Chairperson shall issue a report to that effect to the Minister.

    • Information subject to privilege

      • 14.8 (1) Nothing in this Act authorizes a person to disclose to an observer privileged information, as defined in subsection 17(1) of the Public Complaints and Review Commission Act, and an observer shall not use or disclose that information if it is disclosed.

      • Offence to disclose certain information

        (2) Every person who contravenes subsection (1) is

        • (a) guilty of an indictable offence and liable to imprisonment for a term of not more than five years; or

        • (b) 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.

      • Limitation period

        (3) Summary conviction proceedings in respect of an offence under subsection (2) may be instituted at any time within but not later than two years after the time when the subject matter of the proceedings arose.

    • Regulations

      14.9 The Governor in Council may make regulations

      • (a) respecting the criteria and procedures for the appointment of an observer;

      • (b) respecting the scope of an observer’s role;

      • (c) respecting an observer’s reporting obligations;

      • (d) respecting the access to, and use of, the notes, reports or other material prepared by an observer in relation to an investigation;

      • (e) prescribing the period within which the President is to provide a response under subsection 14.7(2); and

      • (f) generally for carrying out the purposes of sections 14.5 to 14.8.