SECU Committee Meeting

     I see we have quorum, so I call this meeting to order.

    This is the eighth meeting of the Standing Committee on Public Safety and National Security. We are doing our study on the findings and recommendations of the Iacobucci and O'Connor reports.

    We would like to welcome our witnesses to the table this morning. We have Mr. Paul Kennedy, chair of executive services for the Commission for Public Complaints Against the RCMP, together with Michael MacDonald, the director. From the Security Intelligence Review Committee, we have Steve Bittle, Susan Pollak, and Sylvie Roussel.

    We welcome you all to our table and look forward to the testimony you will give us. I am sure it will be very helpful in our study.

    The usual practice here is to allow you to have an opening statement of approximately 10 minutes. We're not too strict on that because we look forward to the information you give us, and that's more important.

     Mr. Kennedy, please go ahead.

     Thank you. I normally defer to the ladies, but the lady in this case has deferred to me.

    Thank you very much, Mr. Chairman, and I would certainly like to thank the committee for inviting me to appear today. I believe, looking at the heading of your committee, that the primary purpose of my attendance today is to respond to your concerns as to whether the RCMP has implemented the recommendations made by Justice O'Connor on certain national security-related investigations carried out by the RCMP in the period following the events of 9/11.

    I'd like to point out that our commission has historically not dealt with many national security investigations. During my approximately three and a half years as chairman of the commission, I can recall three files that could be truly considered of national security in nature. There are a number of reasons for that.

    First, such investigations are generally conducted in a covert manner, and the subjects of the investigations would be unaware of their existence. Few such investigations actually result in the laying of criminal charges. Of those criminal charges that are laid, fewer still would be of such a nature as to self-identify as being related to national security. An investigation into the making of a false document, for instance, may or may not be related to an ongoing national security investigation. Accordingly, if you do not know, how can you complain?

    Secondly, the current legislative mandate does not give the CPC access, as of right, to all information in the possession of the RCMP. The RCMP may refuse--and in fact have refused--to disclose confidential or privileged information. That would include classified information pertaining to RCMP national security investigations. It was only in 2005 that then Commissioner Zaccardelli signed a directive to RCMP members that required them to advise the CPC that it was not making information available and the grounds for such refusal. I suspect that prior to issuance of this directive the CPC was simply kept in the dark about the existence of such information.

    Finally, the commission does not possess a general power to review or audit programs, policies, or activities of the RCMP. Any such reviews have to be part of a complaint process. I have the power to launch my own complaints, but I must have the knowledge of a potential problem before I can engage the process.

    This situation is to be contrasted with the work of the CPC on the RCMP's use of the taser, wherein it produced a comprehensive review of RCMP usage, policy, and training for the period from 2001 to 2007 and for which it will be producing annual reports dealing with members' use of that weapon.

    These legislative shortcomings have been known for decades. I believe the public statement by the former chair of the CPC that she did not have the means to adequately investigate the role of the RCMP in relation to Mr. Arar was a contributing factor to the government's decision to call the O'Connor inquiry. Accordingly, I cannot give you any assurance today that the RCMP has implemented the recommendations of Justice O'Connor, or if such recommendations, if implemented, are either being adhered to or are adequate to achieve their stated purpose.

    These legislative inadequacies, as I noted, have been known for decades. More recently, the Auditor General, in her 2003 audit of review bodies in the national security area, specifically highlighted this problem. With respect to the CPC and the RCMP, she advanced the proposition that agencies exercising intrusive powers be subject to levels of external review and disclosure proportionate to the level of intrusion. This is certainly not the case with respect to the CPC.

     I appeared before Justice O'Connor on November 17, 2005, in relation to phase two of his inquiry. I put forth at that time the elements required for effective review of all RCMP activities, a subcomponent of which is their investigative activities with respect to criminal activities arising from threats to the security of Canada. The recommendations found in Justice O'Connor's report as well as the 2007 report of the Task Force on Governance and Cultural Change in the RCMP, chaired by David Brown, Q.C., in fact reflected that model.

    I have prepared a draft legislative mandate that further articulates what that regime would look like. The elements in that model would address all the myriad challenges that accompany an effective review of such a large organization. Key attributes of effective review are: unfettered access as a right to all information, but for cabinet confidence, with the accompanying safeguards; a positive obligation on law enforcement officers to account for their actions; enlargement of the scope of review to include retired members and non-members who work under the supervision of a police officer; an audit review power focused on the adequacy or appropriateness of policies, procedures, guidelines, and training, and the authority for the review body to conduct joint investigations and share information with other review bodies that have powers, duties, and functions that are similar.

    With such a legislative mandate, I could provide you with the assurance that both the committee members and the Canadian public need and deserve in this manner.

    Last but not least, the review body must have the human and financial resources to effectively fulfill its mandate. In 1988 the CPC had a budget of $3.1 million, whereas the RCMP had a budget of $1.3 billion. Today the CPC's permanent budget is $5.2 million, with some 40 full-time employees, whereas the RCMP has grown to $4.27 billion and 27,669 full-time employees, and that's as of the fiscal year 2007-08, and I suspect it's grown since that time.

    Both the Auditor General and Justice O'Connor recognized that legislative powers must be accompanied by the financial means to exercise them. The previous Minister of Public Safety helped secure additional temporary funding in the amount of $3.7 million for the CPC in respect of the fiscal year ending March 31, 2009--and that's shortly coming to us. Those funds allowed the CPC to do a comprehensive review of taser use by the RCMP, to launch a comprehensive review of the impartiality of RCMP investigation of members alleged to have committed criminal offences, to investigate the 10 instances of death in Canada, proximal in time to RCMP use of the taser, and a systemic review of all complaints disposed of by the RCMP in the calendar year 2007. And this is to name but a few.

    An enhanced legislative mandate, coupled with appropriate financial resources, would enable the CPC to play a similar role in respect of the RCMP's national security criminal investigations.

    I would be pleased to answer any questions you may have concerning our work. Thank you for your attention.

    Thank you very much.

    We'll now go over to Ms. Pollak, please.

     Good morning. I'd like to begin by thanking you for inviting me to appear before you today on behalf of the chair and the other committee members of the Security Intelligence Review Committee, SIRC. As SIRC's executive director, I will be speaking on their behalf.

     It is a privilege for us to be here today to address you. I have with me our senior counsel, Sylvie Roussel, and our research director, Steve Bittle.

    The last time SIRC appeared before this committee was in November 2006. As the membership of your committee has changed significantly in the interim, I'd like to use this opportunity to remind you briefly of SIRC's role and responsibilities. Then, of course, I would be pleased to answer any questions you may have.

    Having been in regular contact over the years with organizations that have mandates similar to SIRC's, I'm confident that Canada's system is recognized as one of the strongest review functions in the world and as a model that has much to offer other countries that are still in the process of developing such systems. This is not to say that changes and improvements are not possible, but that we have in the SIRC model a solid basis on which to build.

    As I am sure you are aware, SIRC came into being at the same time Canada created CSIS, its Civilian Security Intelligence Service. With the passage of the CSIS Act in 1984, Canada became one of the first democratic governments in the world to establish a detailed legal framework for the operations of its security service. Equally significant, the CSIS Act created a framework to make CSIS accountable in exercising its powers, a framework that, by and large, has stood the test of time.

    Specifically, the CSIS Act defines the mandate of and the limits on state power in conducting security intelligence. It also spells out how the service's work is to be monitored through a rigorous system of political and judicial controls, including two review bodies, each with a distinct mandate to watch over the new agency.

    I'm not going to describe in detail the role of the Inspector General of CSIS. Simply, this is an internal body that provides the Minister of Public Safety with a knowledgeable set of eyes and ears on CSIS operations. SIRC, on the other hand, is an external review mechanism that reports not to any minister but rather directly to Parliament and therefore, ultimately, to all Canadians.

    While our role is relatively easy to describe, it's rather complex, at times, to execute. We have two basic functions: to conduct reviews of CSIS operations and to investigate complaints against CSIS. SIRC has, in law, the absolute authority to examine all of the service's operational activities and has full access to all of its files, no matter how highly classified that information may be. The sole exception to this is cabinet confidences.

    Our reviews are done by assessing the service's past activities and operations against four instruments that together form a legislative and policy framework for the service. These are the CSIS Act, ministerial direction, national requirements for security intelligence, and CSIS's operational policies.

    In each of its reviews, the committee examines certain fundamental questions. Did CSIS have reasonable grounds to suspect a threat to the security of Canada? Was the level of investigation proportionate to the seriousness of that threat? Did exchanges of information between CSIS and domestic or foreign partners respect the agreements and caveats that govern information sharing? Last, but not least, did the service's investigation respect the rights of individuals who were involved in lawful activities, such as protests or dissent?

    Normally our reviews take several months to complete and involve examining thousands of pages of documents and having numerous discussions with CSIS personnel. Once a review is completed, copies are sent to the director of CSIS and to the Inspector General. In some special cases, we send our reviews directly to the Minister of Public Safety.

    Declassified summaries, with any national security and privacy concerns removed, are also included in SIRC's annual report to Parliament. Although the annual report is our main communication vehicle for informing Parliament and the public about our work, SIRC does carry on a modest communication program as well. The chair and senior staff respond to media inquiries and participate in domestic and international symposia with relevance to our work. I'm regularly invited to the universities to explain SIRC's role to students who are pursuing studies in this or related fields.

    SIRC's website is another useful source of information for the public. There you can find all of SIRC's annual reports, speeches, presentations, backgrounders, and other publications as well as descriptions of who we are, what we do, and how we do it.

     Moving now to the subject of complaints, you are no doubt aware that SIRC investigates complaints about CSIS brought by individuals or groups. These complaints fall into one of four categories. They can be about any act or thing done by the service; denials of security clearances to federal government employees or contractors; referrals from the Canadian Human Rights Commission in cases where the complaint relates to the security of Canada; and, very infrequently, ministers' reports in respect of the Citizenship Act.

    When SIRC accepts jurisdiction, the complaint is investigated through a quasi-judicial hearing presided over by a committee member whose role is similar to that of a judge. At the conclusion of the investigation, the member issues a decision containing findings and recommendations to the minister, the director of CSIS, and, in cases concerning security clearance, the deputy head of the government department involved.

    We also provide a declassified report on our investigation to the complainant, in which we provide to that individual as much information as we can without breaching our obligation to protect national security.

    As far as SIRC is concerned, having review and complaints under one body has proven advantageous. Our reviews give us the expertise to evaluate and investigate complaints more fully. At the same time, complaints give us another window into CSIS operations, particularly their impact on the lives of ordinary Canadians. In some jurisdictions, these functions are kept separate, but our experience suggests that there are real benefits in having them under one roof.

    Whether we are speaking about reviews or complaints, SIRC's recommendations are non-binding. The scheme of review that Parliament created was not meant to have SIRC substitute for either the director of CSIS, who is accountable to the minister, or for the minister, who is answerable to Parliament.

     Nevertheless, CSIS has implemented the majority of SIRC's recommendations over the years and has publicly acknowledged that SIRC has made it a better organization. In late 2003, then director Ward Elcock said at a major public conference:

    Having given you a very brief overview of SIRC, I would now like to take just a few more minutes to describe some of the issues that are preoccupying the committee members and myself.

    On future challenges, first and foremost, the findings and recommendations of the policy review of the Commission of Inquiry into the Actions of Canadian Officials in Relation to Maher Arar quite evidently could have a significant impact on SIRC's work. In September 2006, Mr. Justice O'Connor released his report on the events relating to Maher Arar. This seminal report contained 23 recommendations on various aspects of the RCMP's and other agencies' national security activities. Three months later, Mr. Justice O'Connor released a companion report summarizing the work of his policy review.

     Although nine of its recommendations dealt with an independent, arm's-length review mechanism for the RCMP's national security activities, it also proposed that independent review and complaints investigations be extended to encompass the national security aspects of the Canada Border Services Agency, Citizenship and Immigration, Transport Canada, the Financial Transactions and Report Analysis Centre, or FINTRAC, and Foreign Affairs and International Trade. Mr. Justice O'Connor concluded that SIRC was the logical body to review the national security activities of the latter four entities.

    It is now up to the government to respond to Mr. Justice O'Connor's recommendations. SIRC has stated that it is ready to assume an expanded role, subject to a full assessment of the mandate, workload, and resource implications. If, for example, SIRC were asked to investigate complaints against the other agencies identified, we would need to acquire in-depth knowledge and expertise concerning the national security activities and governing legislation of CIC, Transport, FINTRAC, and DFAIT.

     As each of these organizations' work extends well beyond national security, unlike CSIS, whose entire raison d'être is to protect national security, the challenge of distinguishing the national security role of these four agencies from their other activities would in our view be considerable.

    In conclusion, let me say that for more than 24 years SIRC has strived to carry out its work in an objective, fair, and balanced way. We recognize that in a free society we have to use every available resource to counter threats to our national security, the most significant today being terrorism. But at the same time, we must uphold the principles of accountability, fairness, adherence to the rule of law, and respect for individual rights.

    I will admit that this task has become more challenging since 9/11, as allegations of human rights abuses in the name of fighting terrorism have surfaced in many countries. Canada has not been immune to such controversy. The case of Maher Arar, which SIRC reviewed before the government appointed a separate commission of inquiry, serves as a case in point.

    The committee and SIRC staff take great pride that, since 1984, we have helped to make CSIS a more professional organization. We remain as committed to this objective as we were then.

     Thank you for your attention. I look forward to answering any questions you may have.

    Thank you very much.

    We'll go to the Liberal Party, the official opposition, first.

    Mr. Holland.

    Thank you, Mr. Chair.

    And thank you very much to the witnesses.

    Ms. Pollak, I'll start where you finished off, which is stating that it's now up to the government to act on Justice O'Connor's recommendations. It's staggering that we have to say that. It was 2006 when Justice O'Connor made his recommendations. At that time this committee was seized with the issue of Maher Arar. It was a flashpoint for a series of concerns of legislative inadequacies that allowed that situation, and perhaps others, to emerge.

    And if Justice O'Connor's recommendations weren't enough, let alone the deficiencies that were identified before, we had recommendations that essentially were echoed by David Brown in his examination of the RCMP pension scandal. There was a special Senate committee on anti-terrorism that echoed the same recommendations. In fact, Mr. Kennedy, you've consistently made the same recommendations, and you've talked about the need to extend the legislative authority.

    The only response we had from the government was from former Public Safety Minister Stockwell Day, who said that the government would be proposing a new oversight system. But we've never seen anything.

    We're in a situation where these legislative deficiencies, which really captured the entire nation's attention.... We were told when Justice O'Connor made his recommendation that they would all be immediately implemented. We're still talking about what the government response is going to be.

    My question, first, is to Mr. Kennedy. Would it be fair to say that the same legislative deficiencies that existed prior to Justice O'Connor's recommendations exist today?

     Yes, very much so.

    I have to indicate as well that we've had, and certainly I've had in the last couple of years, excellent cooperation from the RCMP to actually try to make the legislation work, to optimize it. I'll give you a simple example.

    We have an independent observer program and it isn't found in legislation. If, say, there's a shooting that results in serious injury or death--certainly perhaps in British Columbia, where there are 7,000 RCMP present--we'll go out and do monitoring of the investigation and make sure that the officers are independent. That's not in the book, but with the reality that there's so much public concern about the impartiality of police investigating the police, we try to do that.

    My work on the taser actually flowed from a request from the minister. It's not in the legislation, but he obviously.... I was contacted and asked if I could do that. I said sure we could, as long as the RCMP agreed to cooperate. But there is no legislative compulsion. That's another one that was done off the book, if you can call it that.

    What we have are certain key problems, and I can show you how problematic they are. If I'm doing an investigation flowing from an organized crime investigation, most of that might be with wiretaps and things of that nature. A national security one would be the same thing. The Criminal Code, part VI, has a statutory prohibition that criminalizes disclosure outside of the confines specified in the legislation. The police cannot give me that information without doing a criminal offence. So even where they want to cooperate, they cannot cooperate, by law.

    I have authority to look at the witness protection program--it's written right in my act that I have responsibility in this area--but there's a prohibition in there about the police disclosing information that would disclose the identity of someone in the witness protection program. But the whole thing is to create a new identity for them. We have this bizarre situation where, even with the best of intentions, we cannot get over legislative hurdles that have been put in place and that are obstructing our ability to do our work.

    As indicated, it goes back to, I believe, the very first report made by the chair of my commission. There were 33 recommendations indicated at that time. There were things that were clearly defective.

    My concern as well is that cooperation is episodic. You have two personalities, the commissioner and me, who want to cooperate. You could have one of those personalities change and the cooperation disappear. So even with those personalities, we have problems. And if you don't have those personalities, there are many objections you can raise. In section 38 of the Canada Evidence Act, you can cover all sorts of national security work such that we couldn't get in to look at it at all. The door would effectively be barred.

    So there are problems, and I think it's accruing to the.... It's unfortunate, and to the detriment of the RCMP in this current environment, that we are not able to more effectively work to assess these problems.

    You've addressed a little bit, I think, the fact that you try to find workarounds; that despite the government making commitments repeatedly to introduce legislation, they haven't, so you're trying desperately to find workarounds because the concerns are so great.

    Can you talk to us about the limitations of those workarounds, and about how we're left exposed by not making these legislative changes? Can you help Canadians understand what we're at risk of, particularly in light of what we've seen in the past, by not having these legislative changes?

     An obvious limitation is the fact that there is no obligation for an RCMP officer to answer any questions unless I call a public interest inquiry. The last public interest inquiries that were held were probably up in the range of $20 million to hold. My budget, as I said, is $5 million a year. So to call one inquiry...and we're not in an area where we want to add to the deficit.

    I did the income trust complaint, for instance. That was one I looked at. Because there's no obligation for the police to cooperate, I had the unfortunate situation that the three most senior RCMP involved—Commissioner Zaccardelli at the time, a deputy commissioner, and an assistant commissioner—did not cooperate to explain what they did and why they did it. I thought that was a very important case, because the issue was whether or not there was an intentional interference in the democratic process. I cannot think of anything more seminal. Fortunately, I had someone there who did cooperate, but not the three main players, so I had to work around that in terms of doing a construct that I felt comfortable in saying here it was. As well, the commissioner retired prior to my launching that particular complaint, and if you're a retired person you're not subject to the review process.

    Those things become problematic, and yet there's no doubt that anything you do while in office affects the credibility of that organization, and you should be held accountable for it because it affects the organization, not just the individual. So I think those things are important.

    In terms of the risks, I guess the risks are that if you can't do it and you can't give the public assurances that you have all the information and you've looked under every rock that had to be looked under, then it goes back to what weight you can attach to my reports. When you do that, there are issues here of independence, competency, and public trust. Well, those are what flow out of it. So if you can't do it and I can't give the public assurances, then the public will always have lingering concerns.

    In areas where I can look at it, great; if I can't, there are problems.

    Thank you very much.

    We'll move over to the Bloc Québécois.

    Monsieur Ménard, do you have any questions?

    Thank you, Mr. Chair.

    Mr. Kennedy, you were kind enough to send in your paper with enough time for it to be translated. I read it and you can be sure that I was very concerned by what it revealed. There is no need for me to ask you to repeat what you said.

    There is an inconsistency that I want to be sure that I fully understand. In 1984, when it was decided to take from the RCMP its investigative function in security matters and to create an independent security service in its place, an oversight body was also established. The Commission for Public Complaints against the RCMP is also fully mandated to oversee the RCMP's policing activities. I understand fully mandated to mean having the mandate to undertake investigations on its own initiative.

    After the events of September 11, 2001, the decision was made to give the RCMP some terrorist intelligence activities. I gather that those activities are not covered by your powers of oversight over policing. Apparently, they are not covered by the powers of the body that oversees the intelligence services either. That is the inconsistency. You do not have the authority to investigate on your own initiative. And, as you have so clearly explained, since these things are done in secret, the people who might have reason to complain are not aware of what is happening.

     Yes, one of the things we have to bear in mind—you're quite right—is that CSIS was created in 1984 when the intelligence activities were removed from the RCMP, the old security service. What was not removed from them, and never was removed, was their responsibility to do the criminal investigations of crimes arising from threats to the security of Canada. As a matter of fact, in 1984, when the CSIS Act was passed, at the same time, the Security Offences Act was passed. The Security Offences Act—and I think I've provided a copy of it to committee members—says in section 6 that the RCMP has the “primary responsibility” to investigate criminal activities arising from threats to the security of Canada as defined in section 2 of the CSIS Act, which would include counterterrorism.

    So bear in mind that they've always had a role. The only thing we had before is that you would have manslaughter charges, or counterfeit charges, forgery charges, whatever they might be, flowing out of terrorist activities. We've had terrorist acts right in the streets of Ottawa, attacks on the Turkish embassy, and things of that nature, and they were investigated by the RCMP as criminal activities.

    What happened with Bill C-36 in 2001 is that there was a new class. We created a brand-new label where we could call some—

    Excuse me for interrupting you, but I only have about three minutes left. I understood you clearly and be assured that we will be considering it when we write our recommendations. I have heard you elsewhere as well. I understand the inconsistency very well.

    I would like to move to another matter. You say that you have received additional funding to conduct a comprehensive review of the impartiality of RCMP investigation of members alleged to have committed criminal offences.

    I would like a short answer. When you say “alleged to have committed criminal offences“, do you mean someone who has been formally charged in court or someone against whom a complaint has been made for behaviour that might constitute a criminal act and who, if the investigation revealed that he had indeed committed that act, would be charged in court?

    What we're looking at is any incident where an RCMP member, in my particular case, was involved in an incident that resulted in serious injury or death—or it could be sexual assault allegations, or things of that nature—where the police conducted an investigation. Some of those may or may not have resulted in criminal charges being laid. If criminal charges were laid, I didn't look at them.

    Would the Blundell case be an example of that? Does the name mean anything to you? He is the investigator against whom four female RCMP officers filed complaints for sexual misconduct—to use a euphemism. You did not investigate that case.

    The initiative I'm looking at now—and we're going to come out with a report on this—is an historic look back at over 300 files, which we have distilled down to about 30 in depth. I'm doing this because the issue is out there: is there a problem? We're doing a historic review of those cases to tell you if there was a problem or not. Right now, the only ones I do are in E Division in B.C., where I will go in and look at them.

    I would like to ask Ms. Pollack a question. We now have a “No Fly List“ in Canada under the Department of Transport. In order to establish such a list, normally, intelligence services would be consulted, and you would think it would be automatic because they have the expertise necessary to decide if someone poses a risk in an airplane. There are a lot of complaints. Some people whose names are on the list, for instance, can show all they like that they just have the same name as someone who is considered a danger—or for other reasons—and still can get no action, it seems. A significant number of them get no satisfaction when they complain that their names have been put on the list unjustly.

    There is a remarkable business man in Montreal who founded one of the best classical music record companies in Canada. He is the owner of Analekta, and he is desperate. Everyone knows that he should not be on the list.

    Are you looking into how these decisions are made, how the recommendations are made at the Department of Transport, and whether the system is up to the task?

     A brief response, please.

    The Security Intelligence Review Committee does not have authority as such with respect to the No Fly List, except when someone files a complaint under section 41 of the Canadian Security Intelligence Service Act. That act gives us the authority to investigate the activities of the service. If someone suspects that he is on the list because the Canadian Security and Intelligence Service has provided incorrect information on him, he can complain to the Review Committee. However, that must be pursuant to section 41. We have no authority as such over Transport Canada. People really come to the committee in connection with a complaint.

     Thank you.

    Mr. Harris, please.

    Thank you, Mr. Chair.

    And I thank the witnesses for their presentations.

    Accepting, Mr. Kennedy, that your organization doesn't have sufficient power and needs to have the kind of review and oversight and audit functions that you've talked about, we've had in existence for some 20-plus years now the SIRC. I'm going to address my question not to you, but to Ms. Pollak.

    It seems to me that you're still hamstrung by the problem that you are restricted only to looking at the activities of CSIS, as I assume an even expanded CPC would have. I want to refer to the headlines today and the case of Mr. Abdelrazik. Let's face it, the whole notion of Canadian complicity and torture has brought this issue to the forefront.

    He has complained to your organization. His lawyers have been told, I understand, that we can't proceed until we have a hearing to determine whether or not the committee can fully investigate CSIS actions, given the alleged possible involvement of another government department or of other countries, and the fact that Mr. Abdelrazik is unable to be cross-examined because he's in Khartoum.

    Given that Mr. Justice O'Connor identified more than 20 government agencies and departments that could be involved in national security investigations, would you care to comment on the adequacy of the legislation that your agency has to seriously investigate any complaint of this nature?

    We'll share this response, if you don't mind. I'll let my counsel speak about the complaint process with you in a moment.

    To the extent that our legislation was devised in order to give us full authority to review the activities of CSIS, I would say we have no complaint about the authorities we've been given. We have a very unfettered--except for cabinet confidences--access to all information held at the service.

    The world has moved on since then. There are now more integrated security investigations going on. This was identified by Justice O'Connor in his report as a concern, and I guess in his view a deficiency, and there was a need for a more broad-ranging review.

     As I said in my opening comments, though, at this point I see it as a decision that government has to make--how it intends to address that. And within the confines of our own work as the review body for CSIS, I have no concerns about the authorities we have. But if the government decides that we need to go further than that, then we'll go with whatever we're asked to do.

    But how can you investigate even what CSIS has done without knowing what the other pieces of the puzzle were? What was the involvement of Foreign Affairs? Maybe there were other agencies under Foreign Affairs? How can you do even this job? Did CSIS tell somebody that this fellow should be arrested, etc.? That's one piece, but it always comes together. You can't simply investigate what CSIS did, because the whole picture is left out.

    It's the same as Mr. Kennedy is investigating what the RCMP did. Well, there were other people involved.

    So you're saying you're satisfied that it's adequate but that it's up to the government as to whether or not they expand it.

    It's adequate for purposes of reviewing what CSIS's activities have been. You're right, we can't go further than CSIS. And if the government makes the decision that it wants a review body that can go further, then whoever it is will take on the role.

     And you don't want to comment on whether such a thing is necessary?

    No, I don't think it's appropriate for me to comment.

    I will say, however, that when we did our report on Maher Arar, which as I noted was started before the commission of inquiry was struck, we did provide to the minister, who provided to Justice O'Connor, our report, in which we stated repeatedly, and it's now a public document, that we felt there were places where the RCMP had clearly been involved in the matter in a way that needed to be investigated. That was as far as we could take it.

    That was as far as you could take it then?

    Yes.

    And that's as far as you can take it now as far as Mr. Abdelrazik is concerned. Is that correct?

    That's correct.

    Okay.

    Do I have some time left?

    You've got two minutes left.

    Mr. Kennedy, if I could ask you, sir, it's a similar question: if you were given all the powers SIRC has right now, in terms of the right to go further than you have at the present, would that satisfy, in your view, the needs for investigation and report on matters that are complex and, as we pointed out, as Justice O'Connor pointed out, involving as many as 20 agencies? We need to fix the RCMP oversight, but we also need to fix the larger problem.

    Justice O'Connor specifically addressed that issue. He indicated there has to be an ability for oversight agencies to work with each other, and that's one of the references I made. You have integrated policing, you have integrated intelligence. The integration doesn't just happen at the federal level; it happens at the federal, provincial, and municipal levels. The RCMP is involved in over 150 integrated units across this country. So that's how business is done these days and that's the way it should be done.

    He also said you have to follow the trail. So in part 2 of his report he said, for instance, the commission would have to look not only at employees of the RCMP, but whoever else they interacted with, whether it was at the federal or provincial level, because you have to have all the facts. Absent that ability, because SIRC and we could not do it or there were differences with powers, the government therefore calls public inquiries and gives the public inquiries the power to do exactly the things these stand-alone agencies cannot do. He talked about gateways between them. You have to be able to follow the trail to find out exactly what that other person gave to the RCMP or CSIS, whatever the case may be, that caused them to do what they did.

    He identified that, he spoke to it, and he made his recommendations. Is it important? Yes. I've come up with 150 integrated units, so it gives you a sense of some of the scale we're looking at. And there will be more in the future, not less.

    Should you have subpoena powers that go beyond internal RCMP people? Should you be able to go beyond that to third parties and other levels of government?

    Clearly, that has to be part of it, that you have to have a subpoena power. You'll never be able to address the conundrum O'Connor found himself in vis-à-vis representatives of foreign governments, because they're immune to your process. But everyone in Canada should be subject to subpoena power and be required to attend and to produce documents so you can answer the question. You cannot answer the question with integrity if you don't have access to the full testimony and the full information; it's as simple as that.

    Thank you very much.

    Mr. McColeman, please.

    Thank you.

    Thank you as well to the witnesses for coming today and taking your time to witness to us.

    Mrs. Pollak, I'm curious. At the start of your remarks, I think one of the first things you said was that your oversight model or your review model is a model for the rest of the world. What is the rest of the world doing?

    Can I just take a moment to talk about “review” versus “oversight”?

    Well, okay, whatever.

    I don't want to give you a university lecture, but I'm pretty religious about sticking to the term “review” because it was the intended role of SIRC vis-à-vis CSIS. “Oversight” would imply we are inside directing the day-to-day decisions of the organization, and therefore we would be implicated in any impact of those decisions down the road. We are a review body that looks backwards at what CSIS has done, and we like to make sure that people understand that that's a very clear distinction in our minds.

    As for—sorry, I'm losing the question here—other models—

    Yes, other models.

    —there is a plethora of other models. In the Westminster system, we tend to see parliamentary committees. In the U.K. that's the case, in Australia that's the case, although in Australia they also have an inspector general, but that inspector general has a remit that allows him to look at all the agencies involved in security and intelligence matters; it's not just one, as we have here. In the U.S., as you know, they have the select committees for Congress and the Senate, which are oversight, in my view.

    But parliamentary committees tend to be the more normal model that is used, or a combination of elected officials and judges, which is what we see in Norway. In the Netherlands they are non-elected, so it's quite a mixed bag.

     Further, you went on to say that CSIS has, in general, or in many ways, responded to implementing the recommendations of your reviews when they became aware of that. I'm interested to know a bit more about the dynamic between your role and the CSIS role. Listening to your comments, it seems to be one that's working, and working well, from the legislation in terms of its dictates.

    Can you share with us any of the reasons why it works so well?

    Let me say to begin with that I think you need to approach the work on the basis that CSIS is, as we are, a professional organization that takes pride in what they do. They take it seriously. The people who work there are recruited with great care. They are trained and they spend most of their working career in that line of work. It's very much a professional segregated body that has its own cultural implications. I'm not going to go into it, but we're the same. We tend to keep people for a number of years at SIRC and develop their expertise in this field of review and in the world of security intelligence.

    I think the relationship depends very greatly on constant, careful communication and dialogue with one another. It's necessary in order to ensure that the work we're doing is reasonable, is focused in a way that will be helpful to us and ultimately to them. I think our role is to assist the service in maintaining the highest possible level of professionalism and effectiveness as a security intelligence agency. I sometimes like to say, after all, we're all working for Canadians. I do not see it as an adversarial role. That's not to say that sometimes we don't disagree. We do. Sometimes we end up agreeing to disagree, and we're not going to see eye-to-eye on certain issues or recommendations we've made.

    My experience is that often our recommendations tend to end up being published after steps have already begun to address the issues that have been uncovered through the reviews that we have conducted that led to that recommendation. In other words, through the dialogue and through the process of review, issues have become apparent on both sides and the service has already started to implement steps that will address the recommendation. By the time the recommendation is done, they've already partially or completely taken up what we've suggested they do. We don't direct them. We don't manage them. We don't tell them what to do. We leave it to them to look at the recommendations and assess whether they want to take those on board and how they want to implement them.

    I appreciate those comments, especially the one comment that your starting point is not adversarial. Let's face it, we're all human beings, and human beings make mistakes. We need to give the public confidence in our bodies, such as CSIS and the RCMP, but we are going to make mistakes.

    From the get-go, would it be fair to say, and to characterize and rephrase what you've said, that your starting point is not an adversarial reproach but one that is going to work towards making the organization better for Canadians? Is that what I heard you say?

    I think that's a very good way of summarizing it.

    Thank you.

    You have one more minute.

    No, I'm fine.

    Okay.

    I'll come over to the Liberal Party. Mr. Oliphant.

    Thank you, Mr. Chair.

    Thank you to all the witnesses for coming today.

    I was about to make a speech, but I won't. I think the work you do in two ways is some of the most important work. It's defending civil rights and ensuring that Canadians are treated fairly by the agencies you're involved in reviewing. Second, I think you build up the confidence that the public can have in those agencies, because, Mr. McColeman says, mistakes are made. It's critical for the reputation of those agencies, those services, that you do your work, so I'm in full support.

    I want to thank you, Mr. Kennedy, for your candour, not only today but previously. I also want to express a disappointment that the chair of SIRC is not here. I think you're more limited, Ms. Pollak, as an employee of the agency, and I think that causes some difficulty for our committee in being able to get some of these answers. I express that concern now.

    I have three quick questions. First, do you do joint investigations?

     No.

    I am doing a joint investigation. We don't do it with each other, but it's one of the things that I think we had to do.

    I have a pilot project in British Columbia, where we're doing a review of police and activities by the Victoria police force as well as the RCMP in relation to the Canada Day celebration. It's a model to show it can work, and I'm hoping to show others you can do these things.

    But currently you do not cooperate on a joint investigation.

    That's correct.

    This is difficult. I have constituents who may not understand. My files are thick with the number of CSIS agents who visit members of my community regularly, and RCMP officers who visit them. They don't know who to turn to. Often they recognize that the forces aren't dealing with each other, but their complaint processes aren't as well. I think it is a huge gap. I have a list of names. That will be in my speech some day.

    My second point will be particularly to the SIRC representatives. Do you have any cases under way right now where you fear you may not be able to investigate fully because you cannot investigate activities of other agencies involved?

    I'm assuming you're talking about the quasi-judicial aspect of our work.

    Have you received any complaints where you have expressed any concern that you will not fully be able to investigate because other agencies, perhaps Foreign Affairs and International Trade, or the RCMP, or border security, may be involved and therefore you will have to limit your investigation, so the complainant will not be fully heard? Is there a case under way right now?

    I don't want to avoid your question, but the committee does not comment on any of its complaint cases because under the act these investigations are supposed to be conducted in private.

    Now--

    I didn't ask about a case by name.

    Do you have any concern, or has Ms. Pollak written a letter that expresses concern, that you may not be able to investigate a case because you do not have jurisdiction to investigate all the agencies involved?

    Let me put it this way. When the committee receives a complaint, any complaint, the first thing it does is look into whether the complainant has met the conditions under the act. The first thing is whether or not he's written to the director, and second, whether he's received a response. If not, we can then go to the second step.

    The second step is whether the complaint is trivial, vexatious, or made in bad faith. Whenever the committee does a preliminary review of the complaint, as Ms. Pollak said, we have access to all the information at the service except cabinet confidences. If there are any issues of concern or that raise questions, then the parties will be invited to comment on them. We don't prejudge them. They are simply invited to make representation on whether or not the committee has jurisdiction. The committee will then make its decision based on the act and proceed with an investigation.

    Have either of your agencies made representation to the government with respect to adequacy of funding capacity based on legislation and the O'Connor report?

    Post 9/11, when the so-called PSAC budget, the Public Safety anti-terrorism budget, was enacted, we did say that if CSIS was going to have its budget increased by a substantial amount then we felt SIRC would need to have something reflective of that. We did make representations. I will add that it took three years to get an increment of $375,000 a year added to our budget, which is only $2.9 million a year.

    That's the only representation we've made.

    To Mr. Kennedy, was there any representation to government to try to implement what they have said they will implement?

    I appeared before O'Connor. In each of my annual reports I request enhanced legislation, and I put up on my website, which I shared with the minister as well, a draft model of legislation that shows what it would look like.

     In terms of money, Minister Day, when he was minister, helped us secure $3.7 million, which is good for two more weeks. To that extent there has been some response.

     Thank you very much.

    Mr. Rathgeber, please.

    Thank you, Mr. Chair, and thank you to all the witnesses for your appearance here today.

    I have a bit of a disconnect, Mr. Kennedy, and I thank Ms. Pollak for explaining the difference between review and oversight. I think that was helpful. So am I correct in assuming that you are currently a review committee, but the O'Connor recommendations, which to some extent you subscribe to, would convert you to an oversight committee? Is that fair?

    Not really. These are very funny words. You're dealing with smoke when you deal with review and oversight.

    One of the traditional things we have...you could call us an appeal body in terms of complaints. Although they talk of that as a review, it's actually an appeal function. And we both would have the same kind of review thing, which is absent any kind of complaint. The model would be that you could go and do an investigation of their files to see what's going on.

    I'll give you a classic example of where that would play out. Currently, the RCMP has the power in certain instances, as all police do, to do something that a citizen cannot do because it is a breach of the law. The media call it breaking the law to enforce the law. Actually, it follows from a Supreme Court of Canada decision that authorized them to do it. That requires the RCMP to provide information and a report to the minister, and the minister tables it with Parliament to show you instances where they've used this power to engage in what would otherwise be unlawful activities in pursuit of an investigation.

    There are a number of things that result in that document being edited down: it can damage ongoing investigations, human sources, and things like that. So it's fair to say that the report that Parliament gets is quite thin, a very thin gruel. You actually don't know what's going on. That would be one where I believe it would be appropriate for the review body to go in and look at what is going on, see how often it is being used, if it is being used proportionately and appropriately, that the people are properly trained, and then do a report that will not disclose any of the guts in it but will give you a third-party assurance that the powers are being appropriately used.

     Absent an ability to do that right now, whenever this issue comes up there are allegations that the police and their agents are doing all sorts of horrific things. That's one where we can go in, with no complaint, but look at a program and come back and tell you, yes, it's working. In an audit function we make recommendations. Are those recommendations followed? We want to be able to go in and look at that. And this is the thing you have to be aware of: when people talk about oversight, what they mean is, as the officer is conducting his or her investigation, you're there looking at what they're doing. You'd be second-guessing, saying, well, I wouldn't get a search warrant there, or I wouldn't get a wiretap, or I would.

    That's oversight. But that doesn't mean you can't sit back and look at programs that are ongoing, because some police investigations go on for years. So that's the difference. You're not telling them how to do their job. You look at it after the fact, but you should be able to test the programs and so on that are in place.

    Thank you. I have a couple more questions.

    You agree with me, obviously, that the role of your committee is to review complaints after the fact?

    Yes, well, the complaints clearly are from people that things happened to after the fact.

    Right. I'm looking at your budget chart as it compares to the RCMP and I see that it's grown disproportionately small to the increase in the RCMP budget, and—

    It actually hasn't grown. With inflation it's less than what it started out as, but okay.

    Certainly. So you're of the view that your complaints committee requires additional funds.

    In answer to Mr. Holland's questions you talked about legislative deficiencies and the government so far not converting your complaints committee to an oversight committee, very simply. I want to know specifically, if you received a larger budget, and if you did in fact become an oversight committee, as was recommended in the O'Connor committee, how would that prevent a future incident like the unfortunate incident that happened to Mr. Arar? That's my disconnect.

    I'll go to the nub of your question. I won't get into the weeds about the oversight and all that kind of stuff.

    The simple challenge—and I'll put it in context for you. I have 35 years in the business and 20 at a very high level in national security matters. One of the differences would be that in that particular instance, where information was shared with the American authorities to the point of a database being shared with the authorities, there were policies in place, there were caveats that were supposed to be in place, that would have prevented the activities that led to the disclosure of information and the kind of terminology that was used.

    It can be a temptation, if you're in a national security area and someone says top secret or classified, that no one else is going to see it. I can tell you from many years' experience that's not the case. These are tiny time capsules and the stuff comes out, and it did come out. If you knew that someone could come in and look at your program and find out if you're adhering to those policies and procedures, you would certainly be less tempted to do what occurred in that case, which is to forget about the policies and procedures, pull the caveats off, and just do a dump of information. That would not have happened because you know someone is going to look at it. This is not an area that's in a black box that won't be looked at. That's a major difference.

    Right now, there's a curtain drawn around it and no one looks in it other than the RCMP.

     Thank you.

    We'll go over to the Bloc Québécois now.

    Ms. Mourani.

    It is Mr. Ménard's turn.

    I will ask the first question and Mrs. Mourani will ask the others.

    I imagine that you are very familiar with your legislation and the recommendations of the commissions that dealt with you. Which recommendations ask for legislative change that has not yet been made?

    If in reference to myself, because the work falls under the rubric of national security and therefore is classified—for instance, have they put procedures in place dealing with disclosure of information, and has there been adherence by them to those procedures—by definition, since the material is national security, you can't get in the door to look at it. So I would say in that area I've told you I can't give you any assurances. I can't, because I can't get in there unless they decide to open up their doors and waive all the privilege. So the answer is nothing; I can't look at any. Therefore, I need the power, and the power has to be access as of right to all information, and they cannot claim any privilege to stop it, whether it's national security, defence, or foreign affairs. The only thing I think should be...cabinet confidence.

    But as long as they can claim a privilege, I cannot tell you I've looked at everything and I cannot tell you they've put those things in place and are respecting things that are in place.

    I am not sure that you understood my question correctly. Which legislative changes suggested by the two commissions of enquiry have not yet been made and should have been? What changes to the act should we make?

    None.

    None?

    Clearly, no legislative changes. My act has been the same act since 1988.

    I would have thought that you wanted the power to investigate RCMP national security activities.

    I would like the power. I don't want a separate power of national security. I think everything falls in one power. You don't separate national security; it's all part of what they do. Every activity they do should be subject to our review. By the way, just to clarify the record, there's one reference that linked to my colleague on the Canadian border enforcement agency as well. O'Connor indicated they should be subject to the same review as the RCMP, which is the same body, because they are peace officers under section 2 of the Criminal Code and they enforce the law as well.

    Good morning, everyone. Thank you for being here. I want to ask two quick questions

    Ms. Pollack, you have conducted a number of investigations into the Canadian Security Intelligence Service. I would like to know if that service has used, uses, or plans to use information obtained by torture inflicted during interrogations? Is that kind of information reliable in terms of analyzing national security?

    Also, the New York Times and La Presse have been quoted as saying that CIA airplanes carrying prisoners from secret CIA prisons have apparently landed on Canadian soil. No one knows much about what happened; it is all rather vague.

    In your investigations, has this information been brought to your attention? Have you any more information for us about that, or is it an urban myth?

     I'll deal with the latter question first. We've never seen any information to suggest that anything of this sort has been happening here.

    As for the first question, related to information obtained through torture, there is a decision that has been rendered by a member of this committee in the context of a complaint that was made, in which it was determined that at times, yes, CSIS does use information that was obtained through torture and that their overriding focus in doing so.... Obviously they do so in the context of investigating threats to the security of Canada. That's the first point to make.

    Secondly, however, the deciding member identified the fact that rather than simply being concerned about the reliability of such information, which, as most of us will recognize, can be notoriously unreliable because of the circumstances in which it is obtained, CSIS should be more attentive to its obligations under the Canadian charter and Canada's obligations under various UN conventions prohibiting torture.

    It has been identified as an issue and a concern. It's one of those very difficult questions.

    Thank you very much.

    Mr. MacKenzie, please.

    Thank you, Chair.

    Thank you to the committee.

    My friend, Mr. Ménard, mentioned the no-fly list. Just for clarification, we do not have anything called a no-fly list in Canada. My understanding is that ours is Passenger Protect. I also understand that in the instances Mr. Ménard is speaking of, that probably did relate to a no-fly list held by another country as opposed to Passenger Protect in Canada.

     I'm not sure, Ms. Pollak, if your agency has any connection to that, because it's under Transport. I'm not sure if the suggestion that there are numerous complaints does fit the Canadian equivalency for similar legislation.

    You're correct in the terminology. It's known as the Passenger Protect list. It is a list administered by Transport Canada.

     As Ms. Roussel explained, people can complain to SIRC if they believe that the reason they're on that list relates to information that has been provided to Transport Canada by CSIS. They would use section 41 of the act.

     CSIS would be one of the agencies that may very well provide that information to Transport Canada.

    That's correct.

    In extension of that, have you had complaints?

    We have had some complaints, but I can't go into any details.

     That's fair.

     I noticed, Mr. Kennedy, that you also were shaking your head.

    Yes, because I remember when that was being developed and talking to Transport at the time, and what's happened is that we have had no complaints either. I guess the challenge is that you go to Transport and you don't know where you got it from and what they're acting upon, but they're told, obviously, at some stage, that if they have a problem to go to us or to SIRC.

     I think there is a mechanism there, but frequently our agencies get tagged with what's going on in other countries, particularly in the press, because the issues get crossed if you're watching American news. Some Canadians may even be on another country's no-fly list. That's not our doing. That's obviously the airline's responsibility, who gets on their aircraft.

    I think it's worthwhile clarifying for Canadians that we do not have the no-fly list. The former Minister of Defence, Mr. Graham, said that he had problems going through airports, and I never indicated he was on a no-fly list. That was not our doing; it was another country's.

    I sense a total difference in the two agencies. Mr. Kennedy's agency is set up as a complaints body to investigate complaints, but it would like to go beyond that, and the SIRC body was set up with a different role. There seems, to me at least, to be a clash of corporate personalities, if you will, between the two agencies: one feels they have the tools to do the job and the other would like to expand.

    To me, Mr. Kennedy's vision would go beyond what a police complaints body is to do and move into another area. In many respects I can see the suggestion that SIRC be expanded, because if we talk about all of those other agencies, they do cross a number of things, and probably from the perspective of internationalism, the SIRC body is the natural body--if it's to be expanded in some way--to do those things.

    I'm wondering, Ms. Pollack, from your knowledge of what occurs in other countries--and you've explained that many of them are parliamentary committees and so on--could you tell me if there's anybody out there who has something that we are suggesting or that has been suggested that is significantly different from what we do.

    I'm not sure if I understand the last part of the question. What do you mean by “significantly different”?

    Well, I think you indicated that SIRC is a model that other countries perhaps were ahead of or different from. If we were to combine the suggestions we've heard and what Mr. Kennedy is suggesting, do you know if any other body out there would be like that, or would that be somewhat unique in the world that we live in?

    I'm not aware of any other body, an independent, arm's-length body such as ours, that would have the span of review that is envisaged in O'Connor's report, no.

    In most of the other countries of which you spoke it would be more of a parliamentary committee?

    That's correct.

    And would they have similar powers to those we've been talking about here today?

    Actually, the parliamentary committees, as far as I can see, do not have the degree of access that we enjoy at SIRC. I think it's because we are independent and not within Parliament or answerable to a minister that we were given those extraordinary powers of access. So there's a bit of a saw-off between whether you want an organization that has full and complete access but doesn't have any kind of political function, or whether you give it to the political arm and you restrict the access to some degree.

    So is it fair to say that we may be ahead of other countries?

    It's just a different model.

    Okay.

    Thank you very much.

    Mr. Holland, please.

    Thank you, Mr. Chair.

    First, I have a correction on the no-fly list. Certainly it's not always the case, but there have been instances, including with Maher Arar, where Canadian intelligence has led to a Canadian citizen's being put on a no-fly list in another country. That's one clarification.

    Second, I think we're understanding why O'Connor's recommendations haven't been implemented, despite the fact that the government said they would. The parliamentary secretary just said that he doesn't really understand the need for these recommendations to be implemented.

    Mr. Chair, that's not what I said.

     That's what I understood.

     Here's my concern. We have a budget right now for Mr. Kennedy's office that's at $5.2 million. It's actually smaller because it's been eaten away with inflation. That's against a budget for the RCMP of over $4.25 billion. At the same time, because we don't have this legislative mandate, we have to spend tens of millions of dollars on inquiries in order to get into some of these matters.

     If I could get to the crux of it, there are dark corners that right now, Mr. Kennedy, you are not able to look into. In other words, if there is a question you have with respect to something that's going on, a complaint you get, if the RCMP says they don't want to provide you with that information, they're unable to, because of the current legislative restrictions. Is that correct?

    Second, there are also situations in which if something happens with CBSA, there's no way of reviewing that at all. I fail to see, regarding the examples that Mrs. Pollak gave, that we can investigate everything that's going on with CSIS. How is that the case if you have something that involves more than one intelligence agency? Justice O'Connor has been fairly consistent on the need to try to integrate these and find a way to follow something beyond just one agency. These things are multi-agency.

     I'm hearing a lot of questions from the government side about being the world's best and whether we are better than other countries. I'm not hearing a lot of questions about why we haven't implemented O'Connor's recommendations, what deficiencies there are there, and what the dangers are of not implementing these recommendations, so I want to come back to that. People will go away from this saying everything's just hunky-dory, and we really don't need to implement Justice O'Connor's recommendations. There are all kinds of things that can't be done, and worse yet, enormous amounts of money will be wasted because you don't have the legislative authority to investigate something, and we will have to have tens of millions of dollars spent on an inquiry.

    You have time for a response.

    Are there black holes? I've indicated that clearly there are. They only show up when you have an issue and you have to look and you can't get access. That's a black hole. The CBSA one is clearly an example. I said the integration isn't just federal--it's federal-provincial-municipal, so it's a very big issue. To talk to the other one, we in fact do. I can make a chair-initiated complaint, which I sometimes do. When I look at that, I look beyond merely the conduct of the officer. You look at the policy, procedures, and so on. A police officer is trained to do something. You take the law, and the officer is trained to adhere to the law. So you have policies, procedures, and training. The officer, in good faith, may be doing exactly what he was told to do. The problem lies not with his conduct. It lies with the policy and training, and that's why you have to go back and do it.

    If you look at tasers, as an example--and you can choose any subject matter you want--I had a case dealing with an aboriginal woman who was tasered five times, including at the station. She was handcuffed. It was unjustified. Did I get a reaction from the RCMP to change its policy? No. The minister asked me to look at their taser files, because I had filed my complaint on Dziekanski. They had abysmal files regarding their use of tasers across the force. I looked at that and used statistical analysis dealing with...and going well beyond the complaint to look at what they were doing, how their policy would change. The policies changed, without factual justification, over a period of years, to having use that was inappropriate. We made strong recommendations that caused the RCMP to go back and change their policies and procedures and training.

    I could have 1,000 people tasered and nothing would happen, but because I looked at that statistical base and could see what happened and point to it, I could offer them constructive advice: here's the size of the problem; here's what's happening; here's what I think you should do.

    If you just look at complaints, you're going to get the squeaky wheel, squeaky wheel, squeaky wheel. So yes, in fact you have to do it. These things aren't adversarial or different.

     As far as the models go, you could go across the world. There are very aggressive models out there in terms of policing and all their activities. They're very aggressive. Anyone who's gone to Northern Ireland would have a sense of what's happening there.

    So yes, you need to have more than just a complaint. Otherwise, the poor officer is sitting there without any benefit. Our philosophy is to maintain and restore the public's confidence in the RCMP. You do that by finding out where the problem is and helping them identify the problem. You help the member so that the member is not hung out to dry and so that you don't have the same problems over and over.

     Thank you very much.

    Mr. Richards, please.

    Thank you, and thanks to all the witnesses for being here today.

    Let me first address some comments in the opening remarks of Mr. Kennedy. I take great exception to his comments about funding and the comparison made between the budgets of the CPC and the RCMP. I find that to be a completely unreasonable statement to make. No offence intended here, but it is unreasonable to compare the work of bureaucrats or paper pushers to that of RCMP officers who risk their lives to keep us all safe and secure.

    Comparing the whole budget of the RCMP to the whole budget of the CPC indicates to me that there's an assertion there that all of the activities of the RCMP require review and oversight. When you look at the RCMP there's the cost of vehicles, infrastructure, buildings in each community where they serve, training, and equipment. Of course, there's the increasing load of paperwork we put on our officers that requires more support staff, computers in their cars, etc. To make that comparison is entirely unreasonable, given that a lot of their expenses do not require oversight or review by the commission.

    I wanted to make that comment, make that clear, and put that on the record, because I took great exception to those comments.

    My question is for Ms. Pollack. In your opening statement you mentioned that many times SIRC's recommendations to CSIS are not binding. Yet my understanding is that CSIS does tend to accept or endorse the majority of your committee's recommendations. I'm just trying to get a better feel for where CSIS and you tend to agree and which issues you tend to diverge on. Maybe you can give me an example of each of those. Maybe you can give me a significant recommendation that CSIS adopted, some of the reasons why they chose to agree, and an example of where you felt a significant recommendation was not accepted and why.

    It's going to be hard for me to cast back. There is one example that comes to mind of a recommendation we made repeatedly over a number of years through our investigations of complaints. I'll let Ms. Roussel tell you what the disposition of that recommendation was and how we finally came to see some change.

    I think the example is the issue of destruction of notes that came before the Supreme Court in January. The committee has on several occasions recommended that CSIS not destroy its notes, that it keep its notes for the purpose of being able to get back to more than what's out there or what CSIS has. The committee made that recommendation on several occasions. Finally, the whole issue came before the Supreme Court of Canada last January. The court said that CSIS should be keeping notes in accordance with section 12, which is on retaining intelligence information.

    That's one of the examples where we made recommendations that were not followed, and it finally came to resolution this year.

    Make it a brief question, please.

     I want to get a sense of some of the recommendations where you did agree.

    Because we're a review body, we're not there on the ground day to day directing the operations of the service. That is the responsibility of the director and his staff. We try to keep our recommendations at a general level so the service can determine what makes the most sense in implementing those recommendations, should they accept to do so, which they do in the majority of cases.

    Quite regularly we see that they have partially implemented a recommendation concerning, say, human source policy or targeting policy, but they haven't gone the entire distance we may have suggested in our recommendation.

    I'm really not able to be more specific than that. I hope it gives you a sense of how things are. We try not to be too directive in the recommendations, but rather identify what we think the issue is through analysis. Then we say we think CSIS needs to take a look at the pertaining policy and make some adjustments.

     Thank you very much.

    We will now move over to Mr. Kania. We're starting our rounds again from the top.

    Mr. Kania, please.

    Thank you.

    Mr. Kennedy, we just heard from Mr. Richards, and we've now heard a formal position from the Conservative government that they believe civilian oversight of the RCMP is conducted by a bunch of bureaucrats and paper-pushers. So I'd like you to please pick up on that and tell us exactly what you think about the comment of the Conservative government that civilian oversight is conducted by a bunch of bureaucrats and paper-pushers.

     We have our annual report that goes to every member of Parliament, and other work we do we give, certainly, to the critics of each of the parties and committee members. We try to do that and inform people through the years.

    All of the work we do, whether it's public statements or things like that...we have a very interactive website. If you look at it, one of my pet phrases with my staff--and it drives them crazy--is “sweat equity”. If you have less, you have to be much more creative.

    When I was appointed in October 2005 we had a five-year backlog of files. We eliminated that. I was quite angry when the first file I signed was 10 years old and it was a cell death case. I said we were going to get rid of that, so we eliminated entirely our backlog. We have a service standard of 120 days. Right now it is a service standard that 80% of our cases are dealt with within 120 days. Currently it's about 88% that we're doing. We've knocked off processes all through the place in terms of efficiency.

    I think I'd go on record to say that these paper-pushers have probably the most effective review body in the country, and I'd invite an auditor to come in to see what we've done. We have a very highly skilled workforce.

    The value of what you do is value added. I have over 35 years in this business of public safety, and I've dealt with the RCMP from day one, from the level of constable to commissioner. Certainly, being a former prosecutor and a senior assistant deputy minister, I deal very closely with them.

    I think we've done great work. To do value added, I haven't said this commission is inefficient; I said the commission has to have enhanced powers to do some true value-added work, and I think that's what we've been doing. We did our bit through sweat equity in terms of efficiencies. The organization, actually, in its history cannibalized itself because of financial shortfalls. There used to be an office in Edmonton as well as one in B.C. The office in Edmonton was cannibalized.

    The RCMP are the provincial police in eight provinces, and yet the complaint is that we have an oversight body located in Ottawa and we have an office in B.C. We're trying to do virtual outreach and we're doing good work in that regard. I think the government could be quite proud of the efficiencies we've displayed with our money.

    My annual report this year will itemize the kinds of things we've done. I think we're a value added...with the money the ministry gave us. I would not have been able to do the taser report but for the fact that Minister Day was able to get that money for us. If you look at my last annual report, you'll notice I take pains to compliment the minister on having addressed that issue.

    You'll look at it and you'll find the key issues that we could not address--the police investigating the police, police interaction with people with mental health disorders--and you'll say, “Why are you looking at police interaction with someone with mental disorders?“ When a police officer has to attend at the house of an individual, and the officer has three months' service, and the person he's trying to help by taking him to a mental health facility ends up getting shot and killed, there's a problem there. It's not the bad officer. We're trying to say, how can we help them identify this and how can we identify systemic problems that they may need assistance with?

    In the Kingsclear case in New Brunswick--systemic rape of young individuals over decades--we found problems and we made constructive solutions. That's what we try to do.

    So I hope that when one looks at the value of it, there's value for money.

    Would you agree with me that the supervision of the RCMP by the Conservative-described bureaucrats and paper-pushers is necessary in order to keep the credibility and efficiency of the RCMP?

    I won't characterize or respond to comments, but I will, on a systemic issue, indicate...and I've indicated that before in public speeches. One of my objectives is we're impartial, we're constructive, we're remedial, and our objective is to restore and maintain the public confidence of the RCMP. One of the reasons you need a strong and credible review body is that a lot of the comments the police make now are being perceived as self-serving. It doesn't mean they're inaccurate; it just means that this is the cynicism that exists in society today. You need a strong oversight body that can come in.

    I've gone out there on a very highly controversial case where I've found that the use of force resulting in death.... It was Ian Bush in B.C. I went out there, and about 50 journalists were obviously very aggressive with me because I found the shooting was justified. But I am credible, I'm independent, I've had access to it. So their credibility is going to flow from my credibility. If you attack my credibility, you're attacking a tool that the public and the government needs to assist the RCMP to maintain and restore its credibility.

     That's a good comment, sir.

    We'll go to Ms. Mourani, please.

    Thank you, Mr. Chair.

    I am going to continue with Ms. Pollack about the matter we were discussing just now. You said that you recognize that the Canadian Security Intelligence Service sometimes uses information obtained by torture. First, do you feel that this has been rectified, or does it continue to be done in certain cases? Second, do you feel that using information obtained by torture represents a kind of torture subcontract?

     I do not know if you have any information on the Omar Khadr case. Last summer, in July, we saw videos in the media and on the Internet of young Omar Khadr in tears during interrogation. He said that he had lost his eye and his feet. It was intelligence agents, if I am not mistaken, who were telling him that, no, he still had his eye and his feet were still on the end of his legs. That is what one of the men there said.

    We are told that, during that interrogation, one of the agents present was from the Canadian Security Intelligence Service. I have a copy from the Internet. You can tell me if it is a good copy or if the report of the interrogation, put on line by lawyers, I think, is false—it looks authentic to me.

    What do you think of the attitude of the intelligence agents in the video towards this young man, a minor in 2003 when he was interrogated. He seemed to have wounds, evidence of torture, that is, on his body. A federal court in Canada has apparently said that Omar Khadr had been tortured by his American guards.

    Do you feel that it is normal for the Canadian Security Intelligence Service to do nothing to protect a Canadian national? Is that common? Have you heard about it?

    I don't want to pre-empt the work of the committee. You may not have been aware that we did announce some months ago that we were launching a review of CSIS's involvement in the matter of Mr. Khadr. We've kept an eye on the situation for a number of years now. The videos you have referred to certainly led to a lot of public questions similar to your own. So we have taken it on board and we have a review under way. I really wouldn't want to go beyond that in responding to your question.

    When do you think that you will be submitting your report, approximately?

    It's in process, so we expect it to be completed within this year's reporting cycle. It would therefore appear in the next annual report.

    We will talk about it again. Fine.

    In light of the fact that the Canadian Security Intelligence Service sometimes uses information obtained by torture, do you think that this is a kind of a torture subcontract? Do you think it continues to be done, or has CSIS corrected its methods?

    What exactly is happening?

    The mandate of CSIS is to investigate threats to Canada's security. We live in a big world with a lot of terrorist threats that don't respect borders and that move around quite freely. In such a world, it's very important that our security intelligence service enter into arrangements to exchange information with foreign states. Some of them are nicer than others. CSIS recognizes this fact. It is now more attentive than I think it has ever been in the past to the need to examine the human rights records of the organizations and countries with which it enters into these arrangements and to ensure that it limits its exchanges, to whatever degree seems appropriate—I'm sort of speaking for the service here—given the facts for each country. Since Justice O'Connor's report was published, they have beefed up their own internal analysis of the human rights records of the countries they exchange information with, and they take better care to....

    Do you consider that information obtained by torture is reliable? For example, let us take Mr. Khadr's interrogation when he accused Mr. Arar of having been in Afghanistan. Mr. Arar subsequently denied the allegation and presented evidence to show that was not there, he was somewhere else.

    Do we not see there, indirectly, a demonstration of the fact that, when a person is tortured, he is ready to say anything to stop the torture and that information obtained in that way is not reliable? In a way, this casts into doubt the analysis that is done in the name of national security.

     Can you respond very briefly? We're way over time.

    I will respond very quickly by repeating what the former director of CSIS said, which is that they never accept any information at face value, whatever its origins, without corroborating it from other sources. That really is the role of CSIS to do that, and it's not for us to assess the reliability of information.

    Thank you.

    Mr. Harris, are you ready to go, or would you like to catch your breath?

    No, I'm fine. Thank you very much, and I apologize for having to leave for a few moments.

    My question is for Ms. Pollak. Let's say that in the minds of Canadians your organization is the watchdog of CSIS, with the mandate, to use the words of Justice O'Connor in describing the mandate of SIRC, to look at CSIS with respect to “compliance with law, policies, ministerial directives and international obligations and for standards of propriety expected in Canadian society”. I think that's a good, broad definition of the work people expect you're doing.

    We've talked about the complaints process, where individuals come forward, but as a watchdog, to use that metaphor, could someone like Mr. Abdelrazik or any other Canadian expect that if your agency became aware of, for example, what I see in the Globe and Mail today—a strong indication, if not proof, that CSIS may have been involved in Mr. Abdelrazik being arrested and maltreated in Khartoum—it would be something that your agency would, of its own motion, start sniffing around, but not bark as a watchdog, very quickly to find out on behalf of Canadians and Mr. Abdelrazik, or someone in his circumstances, if our obligations are being met and something wrong is not going on? Is that something you do on a regular basis?

    Absolutely, and in fact I'd like to give you a few examples.

    Please do.

    In the case of Maher Arar, we launched a review. It was not a complaint; it was exactly what you're talking about. Of our own motion, we launched a review inside SIRC of CSIS's role in the matter of Maher Arar months before the government established the commission of inquiry. Our work was well down the road before that commission was set up.

    So that's one example where we did so.

    So what would you do if—

    We're doing it with Mr. Khadr, too, as I just mentioned to your colleague.

    And on an immediate basis, you would take that in hand and do an investigation. Would that then result in—

    We don't call these investigations, because unlike our complaints we don't necessarily call witnesses or subpoena people. It's a different process, but we do still have the full access to all of CSIS's documents, including all of the exchanges of information they've had with other agencies or other countries. So we feel we can get a very clear picture of their involvement in these matters.

    And as Mr. Kennedy talked about in his own presentation, would a case like Mr. Khadr's or Mr. Abdelrazik's cause you to undertake an audit—let's call it that—of the activities of CSIS beyond those particular cases and into how it handles situations of that nature generally?

    Yes, it could do.

    Has that happened as well?

    I believe that after we completed the review of Maher Arar—I may be out of sync here, but my memory tells me—we did a broader review of foreign intelligence-sharing arrangements.

     Thank you.

    You have a minute and a half left.

    Okay.

    So you do undertake this so that the Canadian public can have some comfort that the watchdog is watching? Is that what you're saying?

    I would hope so. Yes, that is exactly what I'm saying.

    And we have the absence of that, at least officially, with respect to the RCMP. Is that...?

    I guess that's your position, Mr. Kennedy. You're doing what Mr. Holland calls “workarounds”, and getting some cooperation, but you don't have the powers you need.

    That is correct.

    Then the next piece is the one that we talked about at the beginning, where we have as many as 20 agencies working either in concert or in different phases, perhaps on the same investigation, or doing similar things. That's missing as well, and we have to find a way to make sure that happens.

    Mr. Kennedy, did you want to comment?

    There's just one thing I wanted to speak to. It might have come out of Mr. Ménard's question, which I hadn't responded to.

    In phase 2 of the O'Connor report he talked about national security creating some sort of overarching body that would actually have the chairperson for SIRC, CPC, and the CSE commissioner sit with this other person and coordinate where the work would go. I took issue with that. That's not required. The last thing you need to do is have people complain that they have a forgery case, let's say, and then have someone say, “Oh, by the way, direct that to this body to look at as a national security matter.” Now you're telling the guy that it isn't just a criminal case, it's a national security case.

    So it really didn't make sense. It also didn't address the fact that beyond just those three players, what you have are all sorts of other folks who are doing national security work at the provincial and municipal levels. What you really needed was the gateway approach, where you could either do joint investigations, joint research, or collaboratively work together. That's the key.

    If you do that, then you hope that the people who head those institutions act in a responsible fashion. I talked about the project we're doing with Victoria in B.C. The police board there was very responsive.

    I would prefer to do that. If SIRC had a case, we could look at it together, cross-designate people to do it, share it, but at the end of the day, the recommendations that come out would be different. Recommendations to an intelligence officer doing that stuff and recommendations to a police officer doing his or her work will be different.

    Mr. Harris, your time is up, sir. Thank you very much.

    We have time for one more questioner.

    Mr. Norlock.

    Thank you very much, Mr. Chair.

    Thank you very much, ladies and gentlemen, for coming today. We're learning a lot.

    I guess I'll start out with a comment, Mr. Kennedy, and perhaps then a question. For 30-some years I worked as a police officer in Ontario. As you know, the Province of Ontario has an oversight body, or a police public complaints commission, referred to as OCCPS, the Ontario Civilian Commission on Police Services. I can tell you that it's a very valued component in public safety in Ontario today. Just as I value your position with the RCMP and the fact that you provide a place where people can go who have issues with the policing services, that's a value to all of us, as well as to the people of Canada.

    The other comment I'm going to make has to do with something you talked about. You mentioned that in certain cases there have been commissions to study particular issues. Then you mentioned that the former public safety minister had tasked you--along with the budget--to do a study into the taser issue.

    Would you say that the assignment was perhaps able to alleviate the necessity for a commission into that? And very quickly, sir, because there's another follow-up question after that, would you say that it probably was good value for money?

     It's good to speak to someone who has a knowledge of the process, as you obviously do in Ontario. As you know, by the way, in Ontario with Mr. Gerry McNeely, they actually put in another piece, which had been absent for 13 years. It not only looks at complaints but looks at broader issues of policy and things of that nature. So I was influenced by the good work Ontario is doing, looking at the recommendations I put forward as well.

    Yes, in terms of the budget and the taser, I would have to think in terms of providing information to the minister and to the commissioner for them to do something. But for that, if he was going to do something at the federal level, he probably would have had to turn around and call a commission of inquiry, because we didn't have the powers. The minister currently can look to SIRC, let's say, and say, “I've got this issue. Will you go and do it?” Beyond what they self-initiate, he can actually ask them to do something. That's not on the books for us. I proposed that the minister be given that ability where he can come to us and say, “Will you look at it?” So in this case we did it. Kudos to Mr. Day for having done it.

     It was fortuitous that just prior to that we had the supplementary money, $3.7 million, for the current fiscal year. That put us in a position to go and fulfill that mandate. Was there value to that work? I believe so, because the commissioner has come out and indicated that they have changed their policy, and there were 22 recommendations. That was done; we had an interim report back to him within two or three weeks, I think, and then a full report within six months, and we've had follow-up action. So value for money? I would think so.

    Thank you.

    If we carry on with some of the other commissions and inquiries, would it be safe to say those inquiries occurred prior to 2006? It was after 2006 that the commissions of inquiry then made recommendations, and stemming from some of those issues, you're making these requests.

    The O'Connor inquiry was established, I believe, prior to.... I think it was 2004-05. So clearly it's those recommendations with the key one, because that's the first time anyone has actually looked at this, since 1976 or 1974, and he made those recommendations. Clearly, they have to be acted upon.

    In the intervening period, yes, there was a series of commissions that were established. I referred to APEC; that was $20-some-odd million. These others are two and a half years long.

    My view is that if you properly constitute a commission with the right resources and powers, you're going to save yourself an awful lot of money. Right now, on national security policing issues, we've got Iacobucci, Major, and O'Connor, who have gone out there and done things--very, very expensive models. These models were very cost-effective in terms of doing the same thing, probably in a more timely fashion, and to some extent also doing preventive work that might avoid this.

    Thank you.

    I have a couple of quick questions for Ms. Pollak.

    Because you're a body dealing with Canada, and you say you have done some comparisons, and you've been asked some questions about comparisons with other countries...you know we always look to our neighbour to the south or to another sister Westminster-style government, such as Australia and Great Britain. We're talking about value for dollar because that's important--but not always necessary when it comes to public safety. You don't always have to look at the dollar; sometimes public safety is paramount.

     I guess my question would be this. If you were looking at a cost-effective model, it seems to me, looking at your budget—which was, I believe, about $2.9 million last year, and I think your actuals were about $2.6 million, so you actually came in under budget, and I think that was in your report—

    What is your question?

    The question, quite quickly, is this. Compared to committees that do these things in other countries, have you ever done a cost analysis?

    No, and I really wouldn't want to take a guess at that.

    Okay, thank you.

    That brings this meeting to an end. We want to thank our witnesses very much for the input you gave us. You gave us good insights into what you do, and it's been very, very helpful. Thank you very, very much.

    This meeting stands adjourned.