Bill C-399: An Act to establish the Office of the Ombud for the Department of Citizenship and Immigration and to make related and consequential amendments to other Acts

Short Title Short title 1 This Act may be cited as the Department of Citizenship and Immigration Ombud Act . Definitions Definitions 2 The following definitions apply in this Act. Minister  means the Minister of Citizenship and Immigration. ( ministre ) Office of the Ombud  means the Office of the Ombud for the Department of Citizenship and Immigration established under section 3. ( Bureau de l’ombud ) Ombud  means the Ombud for the Department of Citizenship and Immigration appointed under subsection 4(1). ( ombud ) Office of the Ombud Office 3 The Office of the Ombud for the Department of Citizenship and Immigration is established. Ombud 4 (1) The Governor in Council, by commission under the Great Seal, is to appoint an Ombud for the Department of Citizenship and Immigration after consultation with the following persons and approval of the appointment by resolution of the Senate and House of Commons: (a) the Leader of the Government in the Senate or Government Representative in the Senate, the Leader of the Opposition in the Senate and the Leader or Facilitator of every other recognized party or parliamentary group in the Senate; and (b) the leader of every recognized party in the House of Commons. Eligibility (2) A person is not eligible to be appointed as Ombud unless they are a Canadian citizen or a permanent resident within the meaning of subsection 2(1) of the Immigration and Refugee Protection Act . Tenure (3) The Ombud 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. Reappointment (4) The Ombud is eligible to be reappointed for one additional term. Rank and powers 5 (1) The Ombud has the rank and powers of a deputy head of a department, is to engage exclusively in the duties and functions of their office under this Act or any other Act of Parliament and is not to hold any other office or engage in any other employment for reward. Remuneration and expenses (2) The Ombud is to be paid the remuneration that may be fixed by the Governor in Council and is entitled to be paid reasonable travel and living expenses while absent from their ordinary place of residence in the course of their duties. Superannuation and compensation (3) The Ombud is deemed to be a person employed in the public service for the purposes of the Public Service Superannuation Act , to be an employee for the purposes of the Government Employees Compensation Act and to be employed in the federal public administration for the purposes of any regulations made under section 9 of the Aeronautics Act . Chief executive officer 6 The Ombud is the chief executive officer of the Office of the Ombud and has the control and management of the Office and all matters connected with it. Absence or incapacity of Ombud 7 If the Ombud is absent or incapacitated or if the office of Ombud 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, while holding office, is to be paid the remuneration and expenses that may be fixed by the Governor in Council. Employees 8 (1) The employees who are necessary to carry out the work of the Office of the Ombud are to be appointed in accordance with the Public Service Employment Act . Technical assistance (2) The Ombud may engage on a temporary basis the services of persons having technical or specialized knowledge of any matter relating to the work of the Ombud to advise and assist the Ombud in the exercise of the powers and the performance of the duties and functions of the Ombud and, with the approval of the Treasury Board, may fix and pay the remuneration and expenses of those persons. Head office 9 The head office of the Office of the Ombud must be in the National Capital Region as described in the schedule to the National Capital Act . Mandate, Duties and Functions of Ombud Mandate 10 (1) The mandate of the Ombud is to examine the practices of the Department of Citizenship and Immigration to ensure that they are fair, equitable, unbiased, non-racist and non-discriminatory, and to conduct investigations if the Ombud has reasonable grounds to believe that a person or group of persons has been the victim of unfairness, inequity, bias, racism or discrimination — including systemic racism and systemic discrimination — in the Department’s decision-making process. Duties and functions (2) The Ombud’s duties and functions include (a) reviewing the Department of Citizenship and Immigration’s policies, programs, initiatives, training procedures and processing standards to identify fairness or equity problems in the Department’s administration of the Citizenship Act and the Immigration and Refugee Protection Act , including those resulting from biases and discrimination — including systemic racism and systemic discrimination; (b) receiving and, if appropriate, investigating complaints, including complaints about the problems referred to in paragraph (a); (c) monitoring trends and patterns in complaints in order to identify the problems referred to in paragraph (a); and (d) making recommendations to the Minister regarding any unfairness, inequity, bias or discrimination — including systemic racism and systemic discrimination — that the Ombud identifies. Limitation on authority (3) The Ombud must not review any matter that occurred before the day on which the Office of the Ombud was established, unless the Minister requests the Ombud to do so. Complaints and Investigations Complaints 11 Any person may make a complaint to the Ombud if the person believes that they have been the victim of unfairness, inequity, bias or discrimination on account of any decision, act or omission relating to the administration of the affairs of the Department of Citizenship and Immigration. Investigation 12 (1) The Ombud may conduct an investigation on their own initiative, at the request of the Minister or in response to a complaint. Notice of investigation (2) Before conducting an investigation, the Ombud must notify in writing the Department of Citizenship and Immigration of their intention to conduct the investigation and of the substance of the complaint or other matter to which the investigation relates, unless that notification could, in the Ombud’s opinion, adversely affect or hinder the investigation. Right to refuse or cease investigation (3) The Ombud may refuse to investigate, or cease to investigate, a complaint with respect to any matter if, in the Ombud’s opinion, (a) the complaint is frivolous or vexatious or is made in bad faith; (b) the complainant has not exhausted the recourses that are otherwise reasonably available; (c) the matter is one that could more appropriately be dealt with, initially or completely, by means of a procedure provided for under another Act of Parliament, or has already been adequately dealt with by means of such a procedure; (d) the matter is already the object of an ongoing investigation under this Act or has already been the subject of a report by the Ombud; or (e) having regard to all the circumstances, investigation or further investigation is not necessary or reasonably practicable. Written notice — refusal or cessation of investigation (4) If the Ombud refuses to investigate, or ceases to investigate, a complaint or an aspect of a complaint, they must notify the complainant in writing of the decision and provide reasons for the decision. Guidelines (5) The Ombud may issue guidelines respecting the manner in which subsection (3) is to be applied. Non-application of Statutory Instruments Act (6) For greater certainty, a guideline issued under subsection (5) is not a statutory instrument for the purposes of the Statutory Instruments Act . Powers of Ombud 13 (1) The Ombud may determine the procedure to be followed in conducting an investigation and take any measures that they consider appropriate, including (a) summoning and enforcing the attendance of any person that the Ombud believes can provide information concerning the matter under investigation and compelling the person to give oral or written evidence on oath or, if the person is entitled to affirm in civil matters, on solemn affirmation; (b) administering oaths and solemn affirmations; (c) requiring any person to provide any information that the Ombud believes the person is able to provide in relation to the matter and to produce any document or thing that the Ombud believes relates to the matter and that may be in the possession or under the control of that person; and (d) making copies of documents and examining things produced under paragraph (c). Return of documents or things (2) Any document or thing produced under paragraph (1)(c) must, on request, be returned to the person who provided it within 10 days after the request, but nothing prevents the Ombud from requiring again the production of the document or thing in accordance with that paragraph. Other examination 14 (1) The Ombud may, on their own initiative or at the request of the Minister, make any other examination of any matters related to their mandate. Powers (2) The Ombud may, in making any other examination, exercise any of the powers referred to in section 13. Report on investigation — complaint 15 (1) After completing an investigation conducted in response to a complaint, the Ombud must prepare and send to the Minister and the complainant a report that summarizes the complaint and sets out the Ombud’s findings, conclusions and reasons for those conclusions and any recommendations. Report — other investigation or examination (2) After completing an investigation conducted or examination made on their own initiative or at the request of the Minister, the Ombud must prepare and send to the Minister a report that summarizes the matter investigated or examined and sets out the Ombud’s findings, conclusions and reasons for those conclusions and any recommendations. Response to recommendations (3) After receiving a report referred to in subsection (1) or (2), the Minister must advise the Ombud, within the period that the Ombud may specify, of all measures taken or proposed to be taken in response to the recommendations in the report as well as the reasons for not following a recommendation. General No right of access 16 The Ombud is not entitled to have access to a confidence of the King’s Privy Council for Canada the disclosure of which could be refused under section 39 of the Canada Evidence Act . Disclosure authorized 17 The Ombud may disclose or may authorize any person acting on their behalf or under their direction to disclose information that, in the Ombud’s opinion, is necessary to conduct an investigation or examination under this Act or that may be used in the investigation or prosecution of an alleged contravention of any Act of Parliament or of the legislature of a province. Protection of Ombud 18 (1) No criminal or civil proceedings lie against the Ombud, or against any person acting on behalf or under the direction of the Ombud, for anything done, omitted to be done, reported or said in good faith, in the exercise or purported exercise of any power or in the performance or purported performance of any duty or function of the Ombud under this Act. Defamation (2) No action lies in defamation with respect to (a) anything said, any information supplied or any record or thing produced in good faith in the course of an investigation conducted by or on behalf of the Ombud; or (b) any report made in good faith by the Ombud or any fair and accurate account of the report made in good faith for the purpose of news reporting. Ombud not compellable witness 19 The Ombud or any person acting on behalf or under the direction of the Ombud is not a competent or compellable witness in any proceedings, other than a prosecution for an offence under this Act, in respect of any matter coming to the knowledge of the Ombud, or that person, as a result of exercising any of their powers or performing any duties or functions under this Act. Offences and Punishment Obstruction 20 (1) It is prohibited for any person to knowingly obstruct the Ombud or any person acting on behalf or under the direction of the Ombud in the exercise of the Ombud’s powers or the performance of the Ombud’s duties and functions under this Act. False or misleading statements (2) It is prohibited for any person to knowingly make, or participate in, assent to or acquiesce in the making of a false or misleading statement to the Ombud or to any person acting on behalf or under the direction of the Ombud in relation to any matter under this Act. Offence (3) Every person who contravenes this section is guilty of an offence and liable on summary conviction to a fine not exceeding $2,000. Regulations 21 The Governor in Council may make regulations for carrying out the purposes and provisions of this Act, including regulations respecting (a) the control and management of the Office; (b) the time limits within which a complaint may be made under section 11; (c) the time limits in relation to an investigation of the Ombud under section 12; and (d) the time limits in relation to the reports and responses under section 15. Reports to Parliament Annual report 22 (1) Within three months after the end of each fiscal year, the Ombud must prepare a report of their activities for that fiscal year. The report must contain a summary of the complaints submitted, the investigations conducted, the problems identified and any recommendations made in that year. Tabling — annual report (2) The Ombud must submit the report to the Speakers of the Senate and the House of Commons and the Speakers must table the report in their respective Houses on any of the first 15 days on which that House is sitting after the Speaker receives the report. Special report 23 (1) The Ombud may, at any time, prepare a special report concerning any matter within the scope of their mandate if, in their opinion, the matter is of such urgency or importance that a report on it should not be deferred until the submission of the next annual report. Tabling — special report (2) The Ombud must submit the special report to the Speakers of the Senate and the House of Commons and the Speakers must table the report in their respective Houses on any of the first 15 days on which that House is sitting after the Speaker receives the report. Publication 24 The Ombud must publish the annual report, and any special report, on the Office of the Ombud’s website within 30 days after it has been tabled in both Houses of Parliament. Review by Parliament Review of Act by parliamentary committee 25 (1) A comprehensive review of the provisions and operation of this Act must be undertaken, every five years after this section comes into force, by the committee of the Senate, of the House of Commons or of both Houses of Parliament that may be designated or established for that purpose. Review and report (2) The committee must, within a year after the review is undertaken or within any further period that the Senate, the House of Commons or both Houses of Parliament, as the case may be, may authorize, submit a report on the review to both Houses that includes a statement of any changes to this Act or its operation that the committee recommends. Coming into Force 180 days 26 This Act comes into force 180 days after the day on which it receives royal assent. Related Amendment 2013, c. 36 Language Skills Act 27 Section 2 of the Language Skills Act is amended by adding the following after paragraph (k): (l) the Ombud for the Department of Citizenship and Immigration, appointed under subsection 4(1) of the Department of Citizenship and Immigration Ombud Act . Consequential Amendments R.S., c. A- 1 Access to Information Act 28 Schedule I to the Access to Information Act is amended by adding the following in alphabetical order under the heading “Other Government Institutions”: Office of the Ombud for the Department of Citizenship and Immigration Bureau de l’ombud du ministère de la Citoyenneté et de l’Immigration R.S., c. F- 11 Financial Administration Act 29 Schedule I.1 to the Financial Administration Act is amended by adding, in alphabetical order in column I, a reference to Office of the Ombud for the Department of Citizenship and Immigration Bureau de l’ombud du ministère de la Citoyenneté et de l’Immigration and a corresponding reference in column II to “Minister of Citizenship and Immigration”. 30 Schedule V to the Act is amended by adding the following in alphabetical order: Office of the Ombud for the Department of Citizenship and Immigration Bureau de l’ombud du ministère de la Citoyenneté et de l’Immigration 31 Part III of Schedule VI to the Act is amended by adding, in alphabetical order in column I, a reference to Office of the Ombud for the Department of Citizenship and Immigration Bureau de l’ombud du ministère de la Citoyenneté et de l’Immigration and a corresponding reference in column II to “Ombud for the Department of Citizenship and Immigration”. R.S., c. P- 21 Privacy Act 32 The schedule to the Privacy Act is amended by adding the following in alphabetical order under the heading “Other Government Institutions”: Office of the Ombud for the Department of Citizenship and Immigration Bureau de l’ombud du ministère de la Citoyenneté et de l’Immigration R.S., c. P- 36 Public Service Superannuation Act 33 Part I of Schedule I to the Public Service Superannuation Act is amended by adding the following in alphabetical order: Office of the Ombud for the Department of Citizenship and Immigration Bureau de l’ombud du ministère de la Citoyenneté et de l’Immigration 1991, c. 30 Public Sector Compensation Act 34 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 Ombud for the Department of Citizenship and Immigration Bureau de l’ombud du ministère de la Citoyenneté et de l’Immigration