SECU Committee Report

A. Follow-up on the 23 recommendations arising from the factual inquiry

According to the evidence gathered by the Committee, the Canadian Security Information Service (CSIS) and the Canada Border Services Agency (CBSA) implemented all the recommendations directed to them in the report on the factual inquiry (a total of 10 and six recommendations respectively).[8]

CSIS and RCMP officials also informed the Committee that the Department of Foreign Affairs and International Trade (DFAIT), in accordance with Justice O’Connor’s recommendation 13, now provides its annual reports assessing the human rights records of various countries to the RCMP, CSIS and other national security departments or agencies that may have dealings with those countries in the course of investigations.

The Committee also heard, without specific details, that the six recommendations arising from the factual inquiry that pertain directly to the government have been implemented. However, the Committee did not receive any information on the implementation of recommendation 18, which states that:

Consular officials should clearly advise detainees in foreign countries of the circumstances under which information obtained from the detainees may be shared with others outside the Consular Affairs Bureau, before any such information is obtained.

During the Committee’s review, only the RCMP submitted a detailed document setting out the changes it had made in response to each of the recommendations directed to it.[9] This document indicates that the RCMP implemented all the recommendations directed to it, or 15 of the 23 recommendations stemming from the factual inquiry.

While the Committee welcomes the improvements the RCMP has made to its policies and agreements in light of Justice O’Connor’s findings,[10] it is nonetheless concerned that new policies and agreements have not been reviewed by an independent body in accordance with Justice O’Connor’s recommendation 10.[11]

In its document, the RCMP indicated that “its practices and agreements are subject to review by the Commission for Public Complaints Against the RCMP (CPC) and the Auditor General of Canada.” Although the Auditor General has the authority to conduct such a review, a certain amount of time may elapse until she undertakes that review. As to the CPC, Justice O’Connor confirmed in his report that the agency does not have the necessary powers to effectively review the way the RCMP carries out its mandate. Justice O’Connor recognized, as did many stakeholders who referred to the insufficient oversight of the RCMP,[12] that the power to receive and investigate complaints, while important, is only one aspect of a full and effective civilian oversight.

Given the limited powers of the CPC, the Committee would have liked to have seen the RCMP take the initiative to submit its new policies and agreements to the CPC for review. Such a review could have confirmed that the changes made by the RCMP meet the objectives of the O’Connor recommendations. It is unfortunate that the Chair of the CPC, Paul Kennedy, had to state in his preliminary remarks that he was unable to report to the Committee on the implementation of the recommendations, since the CPC does not have the general power to review RCMP policies. He stated:

[T]he 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 […] 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.[13]

A number of witnesses noted that the oversight of the RCMP is not as rigorous as that of CSIS. The Security Intelligence Review Committee (SIRC), whose role is to oversee CSIS activities, is regarded as an effective review body. The Canadian Security Intelligence Service Act gives the SIRC broad review powers and specifically provides for the submission for review by the SIRC of agreements concluded between CSIS and foreign governments or international organizations.

The Committee appreciates that the implementation of the recommendations from the policy review would make Justice O’Connor’s recommendation 10 unnecessary, since the review body he recommends would have broad review powers, similar to those of the SIRC. This matter is discussed in the next section of the report.

In short, the information gathered during this review is insufficient for the Committee to determine with certainty whether the changes made by the security and intelligence agencies that appeared before it have achieved the stated objectives of the recommendations of the factual inquiry and whether they are therefore sufficient. The Committee only knows for sure that the government has not implemented any of the recommendations arising from the policy review.

B. Follow-up on the 13 recommendations arising from the policy review

In his second report, Justice O’Connor makes 13 recommendations to address the serious shortcomings uncovered in terms of the oversight of Canadian security and intelligence agencies. He notes for instance that some government departments and agencies, including the CBSA, are not currently subject to independent review of their national security activities. He also concluded that the degree of supervision of the RCMP is insufficient given its intrusive powers.

This Committee[14], as well as many stakeholders, have on numerous occasions expressed the same points of view as Justice O’Connor, urging the government to increase civilian oversight of RCMP activities.[15] Like Justice O’Connor, the Committee is of the opinion that the body responsible for the supervision of the RCMP’s activities should at least have comparable powers to those of the SIRC.

The body recommended by Justice O’Connor, the Independent Complaints and National Security Review Agency for the RCMP (ICRA), would have the power to review all RCMP operations and to ensure that the organization is in compliance with the law. ICRA would also have broad access to information as well as the power to conduct inquiries on its own initiative and to require bodies or individuals to produce documents or to provide testimony.

The implementation of the recommendations from the policy review inquiry would also guarantee independent reviews and investigations of complaints relating to CBSA, DFAIT, Citizenship and Immigration Canada, Transport Canada and the Financial Transactions Reports Analysis Centre. To ensure that these federal departments and agencies are subject to independent review, since their national security activities are not currently subject to review, Justice O’Connor recommended that the ICRA also review the activities of CBSA and that the SIRC review the activities of the four other bodies mentioned.

The review framework that Justice O’Connor recommended demonstrates an appreciation of the increasing integration of national security investigations. His recommendation that legislative gateways be created between the ICRA, the SIRC and the Office of the Communications Security Establishment (CSE)[16] Commissioner would provide for “the exchange of information, referral of investigations, conduct of joint investigations, and coordination and preparation of reports.’’[17] An integrated review of national security issues would also be served by the creation of an Integrated National Security Review Coordinating Committee (INSRCC), whose members would be the Chair of the ICRA, the Chair of the SIRC, the CSE Commissioner and an independent person chairing the Committee.

The Committee is aware that the government has promised a number of times since 2006 to establish an independent national security review structure to achieve the basic objectives set out by Justice O’Connor. That being said, the Committee is quite concerned that none of the recommendations from the policy review have been implemented to date. In his recent committee appearance on the review of the Main Estimates, the Minister of Public Safety did not provide any details about the oversight model he intends to implement. Instead he informed the Committee of his decision to wait for the results of the Commission of Inquiry into the Investigation of the Bombing of Air India Flight 182 before making any changes in this regard. He stated the following:

I will be quite candid with you. In enumerating your list of inquiries, one of those you identified was Justice John Major's inquiry into the Air India matter. That committee has finished its work, but we're awaiting its report. In my judgment, as Minister of Public Safety, my preference has been not to proceed with our changes until we have the advantage and benefit of his advice on the problems that existed and how he feels they can be remedied, to the extent that he may provide advice on them. That is why, at this time, although we've done considerable work and I think are in a good position to proceed very soon with a new comprehensive oversight mechanism, it would be wise and prudent to await the recommendations of Justice Major. That is where we are right now.[18]