ASSEMBLY OF FIRST NATIONS SUBMISSION TO STANDING SENATE COMMITTEE ON NATIONAL SECURITY, DEFENCE AND VETERANS AFFAIRS Study of Bill C-20:

An Act establishing the Public Complaints and Review Commission and amending certain Acts and statutory instruments October 11, 2024

Table of Contents Contents BACKGROUND .......................................................................................................................................... 1 CONTEXT AND INTRODUCTION .......................................................................................................... 1 BILL C-20:

An Act establishing the Public Complaints and Review Commission and amending certain Acts and statutory instruments (Public Complaints and Review Commission Act) ............ 3 1. Duty to Consult ................................................................................................................................... 3 2. Representativeness ........................................................................................................................... 4 3. Commission Recommendations ...................................................................................................... 4

1 BACKGROUND The Assembly of First Nations (AFN) is a national advocacy organization that works to advance the collective aspirations of First Nations individuals and communities across Canada on matters of national or international importance. The AFN hosts two Assemblies a year where mandates and directives for the organization are established through resolutions directed and supported by the First Nations in Assembly (elected Chiefs or proxies from member First Nations). Every Chief in Canada is entitled to be a member of the Assembly, and the National Chief is elected by the Chiefs in Canada.

The role and function of the AFN is to serve as a nationally delegated forum for determining and harmonizing effective, collective, and cooperative measures on any subject matter that the First Nations delegate for review, study, response, or to advance the aspirations of First Nations. In addition to the direction provided by Chiefs of each member First Nation, the AFN is guided by an Executive Committee consisting of elected National Chief and Regional Chiefs from each province and territory.

Representatives from five national councils (Knowledge Keepers, Youth, Veterans, 2SLGBTQQIA+, and Women) support and guide decisions of the Executive Committee. AFN Resolution 06/2020, Support for Advocacy on Systemic Racism in Canada, mandates the AFN to advocate for legislative and other reforms, including the development and mandates of oversight committees to address systemic racism in institutions such as policing and justice, health care, education, and child welfare. These committees must include First Nations as partners in their development and operations.

The AFN is pleased to submit the following written submission in addition to the verbal testimony provided on October 7, 2024, to the Senate Standing Committee on National Security, Defence, and Veterans Affairs. CONTEXT AND INTRODUCTION The initial introduction of Bill C-20,

An Act establishing the Public Complaints and Review Commission and amending certain Acts and statutory instruments (“Bill C-20”), in the House of Commons on May 19, 2022, was done in response to recommendations from a 2006 inquiry into the Royal Canadian Mounted Police (RCMP) and other agencies that were found to have provided false and misleading information on a dual Canadian/Syrian citizen, Maher Arar, that led to his deportation and torture in Syria.

While the scope of the oversight that brought the accountability and credibility of the RCMP and the Canada Border Services Agency (CBSA) into question originates from an international incident, the AFN is intervening out of concern for the safety and security of First Nations Citizens based on issues of accountability, services, and conduct of both the RCMP and CBSA. Since the Arar Inquiry, there have been several Commissions, Reports and Studies that examine systemic racism and discrimination in the RCMP.

Less direct study has been carried out on the CBSA , and complaints made against that institution are handled through internal review processes that are not public.

2 ROYAL CANADIAN MOUNTED POLICE From 2017 to 2020, 25 Indigenous people were killed by the RCMP. In 2024, within the span of a month (August 29- October 1), RCMP and other Provincial/Municipal Policing agencies were responsible for the deaths of 9 First Nations people. Despite multiple inquiries into police -related deaths, no meaningful changes or recommendations have been implemented to either reform policing techniques or address how officers interact with First Nations persons in crisis.

In 2021, the House of Commons Standing Committee on Public Safety and National Security tabled a report on Systemic Racism in Policing in Canada, providing forty-two (42) recommendations aimed at fundamentally reforming Canadian policing to ensure that all Canadians can access police services free from racism and other forms of discrimination. The first four (4) recommendations were focused on the Civilian Review and Complaints Commission to improve the independence and efficacy of oversight for the RCMP.

The AFN advocates for accountability measures in all police services, including mandatory de- escalation training for officers and zero tolerance for extreme restraint techniques that are often used on First Nations people. In March 2024, the Auditor General of Canada tabled a report that reviewed the First Nations and Inuit Policing Program (FNIPP), which is a program that was established in the 1990’s to fund the provision of police services for First Nations. Under the FNIPP, the RCMP can be contracted through Community Tripartite Agreements (CTAs) with Canada and First Nations to provide police services.

The Auditor General found that there are several deficiencies with the CTAs, including the RCMP not dedicating the number of officers required by the agreements to serve First Nations communities and a lack of engagement with First Nations to better understand First Nations needs and to develop cultural competency to serve their communities. After the first 6 police related First Nations deaths, an emergency parliamentary session was held on September 16, 2024, during which MP Lori Idlout, who requested the debate, asked Parliament to make policy changes to save the lives of First Nations people.

CANADA BORDER SERVICES AGENCY The CBSA is currently not subject to an external review body despite facilitating the flow of international travellers and trade and overseeing more than one hundred

(100) Acts. It relies on an internal complaint body for public complaints on service delivery performance and processes. Borders disrupt family and cultural connections, particularly in communities divided by the border. Several First Nations that reside close to the border are impacted by the quality of services CBSA provides to travel between borders to receive services, visit family, and maintain employment.

3 First Nations leadership from the Mohawk Council of Akwesasne have shared that their government continually receives complaints about the conduct of C BSA officers 1. However, under the current system, the only place to direct complaint s is back to the border guards , which erodes public confidence and trust in the existing complaints process and highlights the need for a transparent public complaints body. BILL C-20:

An Act establishing the Public Complaints and Review Commission and amending certain Acts and statutory instruments (Public Complaints and Review Commission Act) The AFN views Bill C- 20 and the creation of a centralized oversight body for the RCMP and CBSA as a positive step toward promoting greater accountability and transparency for public enforcement services.

Legislating i ndependent civilian oversight of both agencies, and ensuring oversight mechanisms exclude current and former employees , and provide m andatory time limits for reporting, are some benefits that increas e accountability and ultimately support the safety and wellbeing of First Nations and Canadians. Numerous Senate studies, position papers, and investigator reports have pointed to the need for legislative reform to address systematic racism across enforcement agencies and in the overall Justice system.

The following recommendations are put forward to the Standing Senate Committee on National Security, Defence, and Veterans Affairs to address systematic racism and the ongoing crisis between First Nations and Canadian enforcement agencies. These recommendations also identify the need for enhanced and meaningful participation and consultation, which is the catalyst for combatting systematic racism. 1. Duty to Consult Bill C- 20 has the potential to impact First Nations Inherent, Treaty and Constitutional rights.

As a result, additional studi es are needed to identify and mitigate those impacts and adequately address the needs of First Nations rights holders. Opportunities should be provided to First Nations whose land base and traditional territories are situated along, or close to, international borders, to share their experiences interacting with the existing CBSA complaints process. Opportunities should also be provided to First Nations who fall under existing CTAs through the FNIPP to share their experiences with complaints processes and challenges in bringing forward complaints under these agreements.

In 2020-21 fiscal year, there were 140 CTAs covering 230 communities. There are also 36 Self-Administered police service agreements under the FNIPP, covering 155 communities, who should also be studied for best practices in handling complaints brought forward by First Nations. 1 “Akwesasne eager to see independent border services watchdog established, grand chief says”, CBC News, November 14, 2022. https://www.cbc.ca/news/indigenous/akwesasne -cbsa-c20-complaints-1.6648230

4 This additional level of study and consideration will help to ensure that the perspectives of First Nations are incorporated into the development of review bodies that affect their rights relating to border mobility and community safety. 2. Representativeness Under Bill C- 20 s. 3 (1.1), the Minister must “seek” to reflect the diversity of Canadian society, considering gender equality and the overrepresentation of certain groups in the criminal justice system, including Indigenous people and Black persons.

Minister Leblanc testified on September 24, 2024 , that this legislation increases the diversity of Commission members and reflect the population it serves. Due to the enforcement crisis in Canada and ongoing conflict between border agents and First Nations rights holders in border areas across Canada, the proposed Commission must include First Nations rights holders to accurately reflect Canadian diversity.  Proposed Amendment The AFN recommends that s. 3(1.1) be amended to provide one (1) guaranteed seat for a First Nations representative.

The First Nations representative should also serve as a chair for those complaints advanced by First Nations against the RCMP and CBSA. 3. C ommission Recommendations The Public Complaints and Review Commission is ultimately able to make recommendations to the Minister of Public Safety, RCMP Commissioner , or CBSA President; however, these recommendations are not binding. While the RCMP has i ts own process to investigate officer conduct, there is a lack of external review bodies for the CBSA.

Also, within Bill C- 20, the Public Complaints and Review Commission will not be conducting their own investigations and will rely on existing investigative processes.

Considering the systemic discrimination and challenges reported with the existing complaints process the AFN is concerned that the proposed languages isn’t strong enough to provide true independence for the Commission.  Proposed Amendment The AFN recommends that Bill C-20 be amended to provide a mechanism to enforce the recommendations from the Public Complaints and Review Commission. --- Thank you for considering the Assembly of First Nations position is on Bill C-20. Please contact our offices if you have questions or wish to speak further to anything mentioned herein.