Proceedings of the Special Senate Committee on the
Anti-terrorism Act
Issue 7 - Evidence - Afternoon meeting
OTTAWA, Monday, April 11, 2005
The Special Senate Committee on the Anti-terrorism Act met this day at 12:48 p.m. to undertake a comprehensive review of the provisions and operations of the Anti-terrorism Act, (S.C.2001, c.41).
Senator Joyce Fairbairn (Chairman) in the chair.
[English]
The Chairman: Honourable senators, I call the meeting to order. This is the 15th meeting with witnesses of the Special Senate Committee on the Anti-terrorism Act.
For our viewers, I will explain the purpose of this committee. In October 2001, as a direct response to the terrorist attacks in New York City, Washington, D.C. and Pennsylvania, and at the request of the United Nations, the Canadian government introduced Bill C-36, the Anti-terrorism Act.
Given the urgency of the situation then, Parliament was asked to expedite our study as quickly as possible. We did that and the deadline for passage of the bill was in mid-December of 2001.
However, concerns were expressed that it was difficult to thoroughly assess the potential impact of this legislation in such a short time. For that reason, it was agreed that three years later, Parliament would be asked to examine the provisions of the act and its impact on Canadians with the benefit of hindsight and in a less emotionally charged situation for the public.
The work of this special committee represents the Senate's efforts to fulfill this obligation. When we have completed the study, we will make a report to the Senate outlining any issue that we believe should be addressed. The results of our work will be available to the government and to the people of Canada. I should say that the House of Commons is undertaking a similar process at this time.
So far, the committee has met with government ministers and officials, the Director of the Canadian Security Intelligence Service, international and domestic experts on the threat environment and individual legal experts. Today, we are hearing from those who exercise the powers of the act on the front lines.
This afternoon we will begin by hearing from Mr. Keith Coulter, Chief of the Communications Security Establishment. He is joined by Ms. Barb Gibbons, Deputy Chief of Corporate Services; Mr. John Ossowski, Director General, Policy and Communications; Mr. David Akman, Director of Legal Services and General Counsel. We will conclude this afternoon's meeting by hearing from Mr. Edgar MacLeod, President of the Canadian Association of Chiefs of Police. He will be joined by Mr. Vince Westwick and Mr. Frank Ryder, Co-Chairs of their Law Amendments Committee.
Honourable senators, I would ask that you keep your questions short and to the point — answers as well — so that we can get the full benefit of our discussion today. Welcome to you all. We are grateful and pleased that you are here.
[Translation]
Mr. Keith Coulter, Chief, Communications Security Establishment: Madam Chair, thank you for inviting me to appear before you today as Chief of the Communications Security Establishment. I welcome this opportunity to talk with you about the impact the Anti-terrorism Act has had on CSE.
[English]
I will be giving you a somewhat abridged version of my opening statement to be respectful of the time limits here. The somewhat longer version was given to the clerk.
Clearly, the brutal terrorist attacks of September 11, 2001, changed for ever the way that we deal with security issues in North America. These events were a wake-up call for Canada and a turning point for CSE.
The Anti-terrorism Act, proclaimed into law in December 2001, impacted CSE in two important ways. It provided CSE with a legislated mandate and it filled an authority gap, thus enabling CSE to engage in the war on terrorism. Under its legislated mandate, CSE engages in three broad areas of activity.
First, CSE uses high-technology methods to acquire foreign communications in order to provide the Government of Canada with foreign intelligence. CSE's job is to precisely locate communications that contain valuable foreign intelligence, acquire them, process them to understand the information they contain, and pass that information to the people who need it. In line with the priorities approved by cabinet, CSE provides intelligence to hundreds of clients across the federal government. This intelligence helps them to better understand global issues. It informs their decisions. It contributes to the development of our foreign and defence policies. Most importantly, it helps to protect the security of our country and its citizens.
Second, CSE provides advice, guidance and services to help ensure the protection of electronic information. In this area we work with other government organizations to predict and prevent cyber-attacks and we help develop and approve the secure communications systems and devices that protect the government's most sensitive information.
Third, CSE provides support to federal law enforcement and security agencies. This is a natural extension of CSE's technical expertise in areas like cryptology and IT security. It is critical to understand here that under this third element of our mandate, CSE may provide technical and operational assistance to our federal partners only under the parameters of their own authority and limitations.
Let me now turn to the significant legislative gaps in CSE's authority structure that were addressed in the Anti- terrorism Act. Throughout the 1990s, as CSE moved further away from its Cold War focus, the pace of change in the telecommunications world moved from evolutionary to truly revolutionary. New technologies proliferated. The volume, variety and velocity of communications increased exponentially. The routing of messages became unpredictable. Anything could be anywhere in this new communications landscape. In this new environment, prior to the passage of the Anti-terrorism Act, the absolute prohibition against intercepting private communications contained in Part VI of the Criminal Code was increasingly scripting CSE out of its basic mission — to collect foreign communications.
To appreciate this impact, it is important to understand that the Criminal Code definition of a ``private communication'' includes any communication with a reasonable expectation of privacy that originates or terminates in Canada. This Criminal Code provision affected CSE in two ways. First, it prevented CSE from intercepting communications that an intelligence target abroad sent to or received from Canada. For example, CSE could not provide intelligence on a known terrorist group abroad if it was communicating with a member or accomplice in Canada. Second, this provision prevented CSE from intercepting any communications that might contain private communications. The difficulty here was that, in this new technological environment where anything could be anywhere in virtually endless communications haystacks and electronic highways, it was impossible for CSE to prove, before it acquired a communication, that both ends of the communication would be foreign. The result was that as technologies continued to evolve, CSE was increasingly unable to access valuable intelligence sources. By the time of the events of 9/11, all of CSE's international partners — the U.S., Britain, Australia and New Zealand — had already found ways to deal with this issue. CSE was being left behind.
[Translation]
With respect to its protection mandate, CSE's ability to protect electronic information and systems was being similarly eroded. In the new cyber environment, CSE needed to monitor activity on Government of Canada networks, and to sample messages that have characteristics associated with viruses or other malicious code. Yet the Criminal Code prohibition against intercepting private communications also prevented CSE from undertaking these essential protection activities. As a result, the essential tools of information protection were rapidly moving beyond CSE's reach as well.
[English]
Nothing could have highlighted more clearly the limits of CSE's authorities than the events of September 11, 2001. In the aftermath of these events, CSE provisions in the Anti-terrorism Act were designed to ensure CSE's authorities reflected both the requirements of the new security environment and the realities of modern communications, as well as the obligation to protect the privacy of Canadians. Specifically, steps were taken to exempt CSE from Part VI of the Criminal Code, where CSE could demonstrate that it needed this to fulfill its mandate. The act thus created a mechanism, an authorization by the Minister of National Defence, which allowed CSE to get back into the game. I want to be very clear about how this works.
Under the legislation, CSE is prohibited from directing its activities against Canadians or anyone else located within the 12-mile limit that defines Canadian territory. CSE is also prohibited from directing its activities at Canadians abroad, defined in the act as Canadians or permanent residents. However, under ministerial authority, when directing its activities at foreign entities abroad, CSE can now conduct operations, even if doing so risks acquiring private communications.
When this occurs, the act allows CSE to use and retain these communications if a very strict set of conditions is met; otherwise, upon recognition, they are deleted.
Similarly, CSE may obtain a ministerial authorization to carry out essential IT security activities that run the risk of intercepting private communications. In practice, with respect to both foreign intelligence and IT security, CSE requests ministerial authorizations to ensure legal protection against what otherwise would be a Criminal Code offence of intercepting private communications that might be acquired incidentally by CSE in the course of carrying out specific collection and protection activities. It is important to understand that such ``activities or class of activities,'' to use the legislative phrase, are permitted only after the minister is satisfied following an in-depth review by the Department of Justice that the specific legislative conditions have been met.
Since the CSE's legislation was passed, ministerial authorizations have allowed us to significantly increase our ability to provide high-value foreign intelligence. Obviously, I cannot divulge any details on CSE's foreign intelligence successes in this public forum. However, intelligence provided by CSE has been directly responsible for helping to protect Canadian troops in Afghanistan from terrorist attacks. I can also say that CSE has provided intelligence on foreign terrorist targets used to protect the safety and interests of Canadians and our closest allies. The CSE would not have been able to acquire this intelligence prior to the Anti-terrorism Act. Similarly, CSE's IT security program has used ministerial authorizations to ensure that the Government of Canada's computer systems and networks are better protected from cyber-attack.
I will speak to the measures in place for CSE to protect the privacy of Canadians. Before providing a ministerial authorization, the minister must be satisfied that, among other things, appropriate measures are in place to protect the privacy of Canadians. The CSE has comprehensive procedures to ensure that its activities respect the Charter right to privacy, in letter and in spirit. This obligation is taken seriously by all CSE employees, who receive extensive direction and training in this area.
In addition, CSE has instituted new procedures for activities conducted under ministerial authorization to ensure that its activities are directed at foreign entities abroad at all times, and that any intercepted private communications are used or retained only if they are essential to international affairs, defence or security. The CSE also works closely with an on-site legal team assigned from the Department of Justice to ensure that its practices and procedures satisfy all legislated requirements. In addition, the CSE Commissioner, former Chief Justice of the Supreme Court of Canada the Right Honourable Antonio Lamer, operates independently, and the position was formalized in the Anti-terrorism Act. Commissioner Lamer has a mandate to review CSE's activities to ensure they are lawful, and he has unfettered access to all CSE personnel and documentation. The commissioner is required by the act to report to the Minister of National Defence annually on his review of CSE's activities. The minister then tables that report in Parliament. As well, the commissioner provides to the minister, on a regular basis, classified reports that focus on specific programs or issues. I note to senators that since the office was established in 1996, the commissioner has confirmed consistently that all CSE activities reviewed were lawful. In addition, since the enactment of the anti-terrorism legislation, the Office of the Privacy Commissioner has examined CSE's activities conducted under its new mandate. No issues of concern were identified.
[Translation]
In short, I believe the authorities granted to CSE under the Anti-terrorism Act provide the right foundation for the organization's activities while protecting the privacy of Canadians. The act responded to an urgent need to update CSE's authorities, allowing the organization to address new threats and to keep pace with a rapidly changing communications environment.
[English]
These new authorities are absolutely essential to CSE's operations, its ability to successfully overcome formidable technical obstacles and, ultimately, to contribute to Canada's security and other national interests. Indeed, in the current strategic and technological environment, CSE could not function effectively without them.
Three years ago, the Minister of National Defence and I explained to Parliament what CSE needed to help protect the security of Canadians. Parliament had the difficult task of ensuring the right balance between protecting the privacy rights of Canadians and protecting the nation's security. In the end, Parliament provided CSE with the critical authorities required to be effective in the new strategic and technological environment. It is my hope that Parliament will continue to support an authority structure for CSE that would allow it to address the serious security challenges facing Canada.
I would be happy to respond to any questions.
The Chairman: Thank you, Mr. Coulter. It is interesting to see how CSE's opportunities have expanded.
Senator Kinsella: First, Mr. Coulter, are there any lacunae in this act as far as the CSE is concerned? Would you recommend additions to the act so that the CSE's mandate would be strengthened, secured or clarified?
Mr. Coulter: The short answer is no, but I would like to explain. We did a comprehensive analysis knowing that the legislation would be reviewed. We have learned about our legislation through various legal opinions written by the Department of Justice on evolving technologies and how we can approach our issues. The conclusion of the exercise determined that at this time we will not identify any gaps or seek additions to the act.
Senator, I believe that the future is uncertain. Technologies continue to evolve at a breathtaking pace and the threat environment could evolve as well. We might have to make recommendations at a time in the future.
When the events of 9/11 occurred, I was in a different position from my U.S. counterpart, who was able to tell his government that he had the necessary authority structure in place and that he needed only resources to pursue terrorism. We were not in that position, and so we came forward with our request and received what we needed; and it still seems sufficient.
Senator Kinsella: If there were a recommendation, would it come from your minister? Who is your minister?
Mr. Coulter: Yes, it would come from the Minister of National Defence, to whom I answer. CSE would make its request of the minister. If he were comfortable with the request, then he would help CSE take it forward.
Senator Kinsella: Is the operation at CFB Leitrim one of your major operations, or does that belong to you at all?
Mr. Coulter: Before the events of 9/11, we did not work as closely with the signals intelligence personnel at Canadian Forces Station Leitrim in Ottawa as we do now. Over the last couple of years, we have tightened up with many government organizations. Our best effort has been to develop an integrated approach with the Canadian Forces to the gathering of foreign signals intelligence.
As the national cryptologic authority, I am the head of the national foreign intelligence SIGINT capability. I have certain responsibilities to ensure that our efforts are integrated with the Canadian Forces. We have a formal integrated model. I chair, with the Deputy Chief of the Defence Staff, regular meetings to oversee the implementation of this model. The results are extremely encouraging. We are working tightly together. It is supporting our troops abroad in places like Afghanistan much better than before. All of that, from my perspective, is going in a very good direction.
Senator Kinsella: Do you have a physical plant of your own?
Mr. Coulter: We do.
Senator Kinsella: Is its location classified?
Mr. Coulter: We have a campus of facilities. My office is in the old CBC building at 1500 Bronson Street. We have, on Heron Road, a major foreign intelligence complex. We have another building, soon to be two more, going up, because we are growing on that campus. We are working with Public Works and Treasury Board on a longer-term solution. The plan is, by the fall, to have a government approved, long-term accommodation plan for CSE. We have been adding buildings out on our campus because we needed floor space in a hurry.
Senator Kinsella: Do you have preventive attack responsibilities? For example, do you have responsibility to ensure the security of the network system of the Government of Canada from attack?
Mr. Coulter: If you want to think about us correctly, think of us as the highest end of leading-edge, cutting-edge technical expertise in the Government of Canada. We have to work with others. We are relatively small, and some government organizations are huge and have a lot of information technology infrastructure. We try to keep in front of things. The new National Security Policy and Budget 2004 gave us a boost to move forward into more prevention and prediction of cyber-attacks and look at threats and vulnerabilities over the long term, and we are building capacity to do that. We think protecting our cyber-infrastructure will be very important in the future.
Senator Kinsella: I am interested in the machinery of government and command and control. Who do I call on the carpet if the Government of Canada's system is attacked by things like nasty worms?
Mr. Coulter: The Government of Canada's systems can be attacked. The issue is if we do not successfully defend against that or are not aware of it. We do not have it perfect yet, but we work closely and collaboratively with a number of other government organizations. The overarching responsibility for the security aspects of critical infrastructure, including the government's infrastructure, now rests with Public Safety and Emergency Preparedness Canada. It inherited the responsibilities previously assigned to what we knew as OCIPEP, the Office of Critical Infrastructure Protection and Emergency Preparedness that was located over in DND. As part of a government reorganization in December 2004, that responsibility went to the new Department of Public Safety and Emergency Preparedness.
We are working hard on this. It is a very complicated area. We provide the leading-edge technical expertise. The government has given us additional and significant resources in this area that are allowing us to build capacity. In the budget process, in the National Security Policy process, we had a voice. I spoke forcefully about the need to do this because of how we see our cyber-future evolving, and I am happy to say that we are building capacity here that we need to face the future.
Senator Kinsella: One of the obvious ways to attack Canadians would be to attack a number of the critical infrastructure systems across the country. For example, I come from one of the provinces where there is a nuclear reactor generating electrical power. Do you have the responsibility to ensure that that infrastructure is defended against takeover by those who would wish to do harm? Let me go a little further. I admit openly that I have been watching a show called 24 on Monday nights, on which we saw a scenario of meltdowns at nuclear plants that can do tremendous harm. Is our infrastructure such, with those kinds of plants?
We just had a few years ago the big blackout relating to electrical power generation. That is clearly provincial jurisdiction. I am interested to know where it all fits together so that, as Canadians, we are on top of defending against these cyber-attacks, particularly on the operational side, where the provinces are running the nuclear and other electrical generation activities. Would you explain to us who is in charge of what and how well it is working?
Mr. Coulter: Mr. Ossowski may wish to add something here, but the overall responsibility is with the new Public Safety and Emergency Preparedness Canada. A number of initiatives are in play here that will help us. I do not disagree with anything you have said in terms of describing the seriousness of all this. We provide the leading-edge technical analysis and expertise, advice, guidance and services into this mix, but PSEPC has the lead in terms of the federal government's capacity to protect our infrastructure.
To show you how this works, with respect to the blackout about a year and a half ago, for example, my assistant deputy minister in charge of IT security was part of the Canada-U.S. group that looked at all of this to try to learn the lessons. Obviously there were cyber-dimensions to this and cyber-vulnerabilities that were exposed in this exercise. As the technical expert, he played that back into Government of Canada decisions and discussions.
One other important issue that the National Security Policy announced is the need for a cyber-security task force to look at all of this from a national perspective. Other countries, such as the United States and the U.K., have already done an exercise like this, bringing the government players and the critical infrastructure people into the same discussion and developing a national consensus around how to tackle these problems, including the role of government with the private sector and so forth. I have been part of those discussions. We are not quite there yet in terms of a launch, but I have been to discussions with people from government and the private sector looking at how we can launch that task force and get an important piece of work done that can help guide our thinking as we move into the future.
The issues are very serious now. If we do not do the right things in terms of organizing ourselves and getting ready for ever more serious things, they could be our undoing. I do not want to stress that too strongly, but there are some risks here. It is my view that we are playing our role in terms of bringing attention to the right issues and that some important things are being organized and are happening. However, to say that we are where we want to be would be an exaggeration. We have some work to do on this.
Senator Kinsella: Finally, last week the Auditor General drew our attention to some problems with command and control in times of emergency. Have you had a chance to look at the Auditor General's report?
Mr. Coulter: This would be the February or April report?
Senator Kinsella: The one of 10 days ago.
Mr. Coulter: The only touching point that report had with our organization is it was looking at the allocation of funding for critical infrastructure protection from previous budgets. With respect to CSE, it said we used good criteria for allocating those resources.
Senator Kinsella: I asked the same question of the Commissioner of the RCMP, and he said the Auditor General had good things to say about that organization as well.
The point is the Auditor General has serious concerns about the command and control structure of the country dealing with an emergency. That was her point. I did not bring the documentation with me. If each agency is only looking at its own area, and yet you are saying we all have to cooperate, there cannot be these walls. We may get the walls down, but who will be in charge? As far as cyber-attacks are concerned, are you in charge? Is somebody else in charge? Who will call the shots in times of national emergencies?
Mr. Coulter: PSEPC has that overall responsibility for the government. The period that the Auditor General looked at was when OCIPEP was part of DND. We have moved on from there. We have a new organizational structure. It fits well with that of the United States, and PSEPC has the responsibility for tackling this set of issues.
Senator Austin: I would like to explore the extent of our operational jurisdiction with respect to Canadians, which you addressed in the presentation you made. You can easily postulate a situation where people with Canadian citizenship are highly active in terrorist situations. That could be entirely within Canada or linked to persons with Canadian citizenship who are resident abroad. It would seem natural to me that would likely be the case if people were trying to conduct terrorist activities here in Canada.
I see in your presentation that you cannot direct your activities against Canadians. I wonder how that lacuna, to use Senator Kinsella's word, is picked up in the security situation. If you cannot do it, why not? What was the underlying public policy reason you were excluded, and who does it?
Mr. Coulter: The short answer is that terrorism within the confines of our 12-mile territorial limit is an issue that CSIS tackles. We can provide them with technical or operational support, but that is something they focus on and have developed the capacity to do.
Senator Austin: You talk about being able to serve others within their legislative mandate. When you make this presentation about not having access to Canadians, do you go on to say, ``However, if we are serving CSIS then we can do these things because they have the mandate to do them?'' Are you a service provider to CSIS in this regard?
Mr. Coulter: We could be, but that is not the focus of our efforts. Because CSIS works through a court-warrant system, they are able to do what they need to do with respect to communications. They have the expertise. They have the authority to acquire communications within the territorial limit of Canada. We have built a system that goes outside Canada, and our focus is outside.
For example, we have been code makers and breakers since the Second World War. We have developed the best decryption capacity in this country, and it is world class. If CSIS runs across encrypted data that they want decoded, they would come to us with a specific request for that kind of operational assistance, and we would provide it to them as long as we knew that it was a legal authority, which is why I have a team of lawyers down the hall. We would ensure a warrant was in place, that the information that they wanted decrypted was obtained legally. Then we could offer them assistance, do the work and return it to them. That is the kind of activity we get involved in.
Senator Austin: Where you do not have the direct authority to do surveillance work within Canada or among Canadians, others have the authority to authorize you to do that type of work?
Mr. Coulter: Yes, they have the authority to do it themselves.
Senator Austin: Do they have the equipment to do it themselves?
Mr. Coulter: Yes.
Senator Austin: CSIS does not need your technological equipment?
Mr. Coulter: Countering terrorism in Canada is their bread-and-butter mission. They have built the capacity to do what they need to do.
Senator Austin: They do not need the electronic support from you?
Mr. Coulter: They sometimes need specific operational and technical assistance along the lines I have outlined, and they would come to us with a specific request. As long as everything was on track, we could assist them. We have a different focus and a different kind of capacity. We are trying to go out there into those haystacks and electronic highways outside our borders and find information that is of value to government decision makers. If there is a domestic terrorist in Canada, CSIS goes to a court, gets a warrant and can surgically intercept the communications they have to.
Senator Austin: If in your tracking of international traffic you discover that some Canadian is identified as a potential terrorist, what do you do with the information?
Mr. Coulter: That is a good question because that is exactly what this legislation gave us. We are out there searching for foreign intelligence. When we incidentally acquire a communication from a terrorist into Canada, if it had intelligence value, we would share that information with CSIS. This can be the tipoff that gets them on the file, depending on the nature of it. It can be something they already know. We can legally acquire that information, share it with CSIS and help them. The way we look at it, we are trying to help paint the picture of what is outside the borders of Canada; and where is there is relevant information and connections to Canada, we are sharing it with relevant domestic partners.
Senator Austin: What is your ability to stay current on the traffic you are monitoring? Can you assess this data in an up-to-date way, or are you constantly managing a backlog?
Mr. Coulter: I cannot get into much operational detail in a public forum. We are holding our own. We are building capacity.
The reality of this kind of business is you become more precise over time in terms of what you are looking at and so on. With respect to terrorism in general, we have been building capacity since 9/11, or since the legislation was passed; it was slow at first. We are getting better at this, but the problem is getting more complicated.
Senator Austin: You can operate in how many languages?
Mr. Coulter: I would say we operate in virtually every major language group. We follow the Government of Canada intelligence priorities, so it does not take much imagination to think of what languages we might be emphasizing these days.
Senator Fraser: Mr. Coulter, could you tell us how many ministerial authorizations you have sought and how many you have been granted?
Mr. Coulter: Mr. Ossowski might help me out here in terms of the number. We could characterize it as a small number. We do two types. There is the foreign intelligence, under that provision of the legislation, and then there are the vulnerability assessment kinds of issues that we need for IT security purposes. We have sought a number in both categories. The numbers are fairly small.
Mr. John Ossowski, Director General, Policy and Communications, Communications Security Establishment: I think there are five in place right now. It is important to understand they are only valid for one year. There is a renewal process for various activities from year to year. In total it is less than 20, but I do not know the exact number.
Senator Fraser: Have any ministerial authorizations or renewals been denied?
Mr. Ossowski: No.
Senator Fraser: When the commissioner is doing his review of what goes on, his role, as I understand it, is limited to saying whether all these acts were done legally, not whether they were improper or desirable. Is that correct?
Mr. Coulter: That is correct. The way the legislation reads, he reviews our activities to see if they are in compliance with the law, are lawful.
Beyond that, this commissioner has in his public report made it clear that he sees a proactive element to his work, and the way that he thinks about that turns into his analysis and advice to the minister. Anything he sees as a weakness in a procedure that could lead to an erosion of discipline, or does not demonstrate the required discipline and therefore could lead to unlawful behaviour down the road, he provides recommendations and advice in that zone. We obviously take that very seriously, because his staff knows us well. They make their recommendations.
I have to, in the end, manage the place, make decisions and satisfy myself that we will not have any difficulty. Clearly, if we were ever observed to be breaking the law, that would be a huge issue that would stop us in our tracks and have to be dealt with seriously.
The idea that we want to prevent anything from happening is one that I embrace as well as the commissioner. I am very open to his advice in that area as well, although on every occasion I might have another way of tackling the problem, for example, if indeed there is one.
Senator Fraser: All focused on legality rather than policy judgments?
Mr. Coulter: Yes.
Senator Fraser: This is maybe a technical point, but it is the kind of thing that always concerns me. I know that the commissioner's annual reports go ultimately to Parliament, but directly they go to the Minister of National Defence. That includes his reports on the ministerial authorizations granted by the Minister of National Defence.
From the point of view of good governance, accountability and all those other important issues, would it not be preferable to have him report directly to Parliament? I am talking now about the annual report, not his confidential advice to the minister, which I can well understand might not be the sort of thing that ought to be made public on a routine basis. Should that report not just go to Parliament, since in it he is presumably passing judgment on the minister on occasion?
Mr. Coulter: It does go to Parliament. It goes in the route that was defined.
Senator Fraser: Through the minister?
Mr. Coulter: I do not have big thoughts on that. I am not a machinery of government expert, but I do know that the minister cares a lot about the commissioner's work. I meet with him regularly. We deal with these authorizations; there is a relationship there. Part of the trust model is that he knows that someone independent is looking at it and reporting to him that we are staying within the legal parameters that he needs us to stay within.
That adds considerably to the accountability, because although I would never tell the minister anything I did not believe to be true, he can have a stronger belief in it being true, given that we are looked at with outside independence. In this case, an ex-Chief Justice of the Supreme Court of Canada, who is probably, based on what his staff is told, in the best possible position to see if we are operating within the legal parameters that Parliament has given us.
The other point that I would like to add on accountability is that I spent a good part of my professional life in the military. I worked in the private sector for a few years and I worked in other government organizations. I have never felt so accountable in my entire life. I know that any issues of lawfulness, any serious problems, would be extremely harmful to the organization. There is very little chance we could do anything major that would not be uncovered by the commissioner, the Auditor General, the Privacy Commissioner, or someone else. I give the minister a regular stream of information and reports on how we are doing. He gets independent assurance from the commissioner that this is not pulling the wool over his eyes. That is the model.
Senator Fraser: I want to make it plain, for the record, I am not here attacking, certainly the present Minister of National Defence, for whom I have very high regard, but any minister of national defence. I am just talking about systems here, what are the most desirable systems to have, above and beyond individuals.
Senator Andreychuk: I want to go over a bit of ground that has been touched on.
You are saying that you are scanning constantly international sources that you may think are relevant. If they are not, you immediately destroy them. Is that what the act allows you to do?
One of the dilemmas that I see is that if information involves any Canadian source, or anyone who is on Canadian soil, it has to be turned over to someone else. That would be CSIS, or perhaps a police authority. Obviously, if there was so much information that you could pick it all up in one day and put it into the other category, it would not be a difficulty. What I understood from the lessons of 9/11 and the commission report is that you get what we call the dots, and good intelligence is when you connect them all; things like people applying in the United States for pilots' licences, of itself does not appear to be a terrorist activity, or certainly did not at that time. If you are working in a preventive mode, it will only be when you connect all these little snippets of information that in themselves are innocuous together that you can see the full picture.
You are out there collecting information and trying to get a picture and then you are passing on some information on Canadians. Where is the connection for the bigger picture? Who takes what is done outside of Canada and what is done inside Canada to paint that picture?
Mr. Coulter: The answer will not surprise you. That is, it is fairly complicated. Let me take a quick run at it.
On the first part of your question, the operative part of our legislation is that we can only utilize information that involves any Canadian aspect if it is essential for international affairs, defence or security. With the Department of Justice, we have operationalized that through procedures. It is a very high bar. We are not talking about noise; we are talking about something that is considered by reasonable people to be essential to international affairs, defence and security.
When I am being a little flippant, I say that the Department of Justice has operational control of my organization. The parameters of the box we operate in, if I can put it that way, are defined by the Department of Justice in terms of how you can interpret the legislation. When we put down the parameters for being essential, we have to satisfy the Department of Justice, and then we have the independent review by a former Chief Justice of the Supreme Court to give the minister comfort that this is all being interpreted in the right way.
We are not talking about little dots. We are talking about big clangers, in our case. In general, your point about intelligence being connecting dots is absolutely correct. That is what we are trying to do out in foreign intelligence land. We take this snippet and that snippet and weld them together, trying to paint a picture and develop meaningful intelligence.
Any connection with Canada has to go over the very high bar of an essentiality test before we can pass it to any other agency or, indeed, before we can use and retain it in any way. Otherwise, it is deleted. That is the way it works.
Senator Andreychuk: As a follow-up, if you find some information on a Canadian, you delete it or you turn it over to an appropriate Canadian authority?
Mr. Coulter: That is correct. Mr. Ossowski, will you explain that?
Mr. Ossowski: There are two possibilities. If we have intercepted a communication because we have directed our activities at a foreign target and there is a Canadian involved, then we would develop a report to be sent out. In the first instance when that report is sent out, the identity of that Canadian is suppressed. The intelligence body, usually CSIS if it is a terrorism case, would have to come back to us and explain why they needed to know the identity of that Canadian. If it passes through the criteria successfully, then that identity is revealed and they can work with it and blend that with the other intelligence they may have gathered. However, it is not guaranteed that it gets passed on in every instance.
Senator Andreychuk: If you pick up this information on a Canadian, you turn it over to only a Canadian source. You have no idea what the Canadian source does with it, including whether they share it with other intelligence agencies around the world.
Mr. Ossowski: No, actually it always comes back to us. We control the information always. For example, if CSIS wants to share it beyond their agency, they have to come back to us for approval to do that.
Senator Andreychuk: Suppose large amounts of money are being transported to a bank somewhere, and you turn that information over to CSIS. You say that they cannot use the report except for their own purposes, or else they must come back to you. How do you know that they, in their ongoing protocols, do not share information on an informal basis with their colleagues? Would not the answer be, you do not know?
Mr. Coulter: One assumes a certain degree of professionalism here, too. Our experience with CSIS is that they honour the regime and protocols that we have in place. They would come back to us. I asked Mr. Ossowski to answer the question because he is a senior person reporting directly to me who has responsibility for this area. If it in any way, shape or form did not make sense or if there were any questions around it at all, we would quickly escalate it. I work in policy and operations for the National Security Advisor in the Privy Council Office. I report to the minister through him. If there were any issues whatsoever around it, we would escalate the discussion to that level. That would engage myself, the Director of CSIS and whoever else it made sense to have in that discussion, and we would need a government decision on it.
The volume of any such material is extremely low, but we do collect it. The authority that was given to us by Parliament allows us to get at that very rare but important call between, say, a terrorist group and a Canadian. It may be of international as well as national importance because of relationships. The terrorist groups are networks. Al Qaeda has a presence everywhere. We are trying to paint that picture, and to be effective as part of an international approach, the right answer may be sharing on some occasions. We would have that discussion, but they would have to come back to us, and then we would have to play it out bilaterally or in the context of a government discussion, depending on the nature of it.
Senator Andreychuk: Is there any way that Canadian citizens could find out whether in fact any information about them has been utilized or shared? In other words, are we as Canadians totally out of the loop in determining whether any of our international communications are being scanned?
Mr. Coulter: I think the answer is that it is invisible to Canadians.
Senator Andreychuk: The legitimate complaint I have heard from some citizens who do a lot of international business is that they are worried about being confused with someone with a similar name, or that some of the information about business dealings could eventually end up with sources around the world that could be disadvantageous to their business interests or to them personally.
Mr. Coulter: I could say, and I hope it will give you some comfort, that what you just described certainly does not meet the test of essentiality to international affairs, defence or security as I understand it, as the Department of Justice understands it, and as the CSE commissioner would accept it. We are talking about a very high bar here. To my mind, the only way we have of tackling international terrorism effectively is to understand those occasional links into our country.
Senator Andreychuk: I will leave it at that.
Senator Joyal: I will address my question to Mr. Coulter, but perhaps Mr. Ossowski will be in a position to answer.
Last Monday, the Minister of Public Safety announced that the government is considering tabling legislation that would give effect to the conclusions of the committee of parliamentarians that studied national security last summer, made public in October. I have the press release here. The minister, in her announcement, specifically named your body as one of those who could come under the scrutiny of that group of special parliamentarians. I say ``special'' parliamentarians because they would have to be sworn in and so on. The minister explained the conditions in her press release published last Monday.
If everything is so clear, as you have said, Mr. Coulter, why is it that you are part of that possible oversight by Parliament? I do not want to dispute it, but according to the tone of your presentation, everything seems to be so perfect that, in fact, you should not even be here today. According to the committee of parliamentarians who studied the issue last summer, and according to the minister's decision, you will be one of the three bodies that will come under the scrutiny or oversight of Parliament. Could you perhaps give us more candid comments?
Mr. Coulter: I truly support this initiative, and I have said that to the interim committee. This initiative is important because it will build a bridge between CSE and Parliament that could not exist in any other way. This is a public forum and so there are limits to what I can say about the kind of business I am in. It requires a very high level of confidentiality, and talking about it in public could compromise its effectiveness and that of our allies. We work closely with our allies and many comments about CSE would apply to them as well; and they certainly do not say very much publicly.
The U.K. committee of parliamentarians met here and I had a good session with them. I believe we can set up out committee in the right way. The concern for an agency such as CSE is that it must be set up in such a way as to ensure the level of confidentiality and trust with parliamentarians that is required to make it work well. We must do it right, and that can be done. I prefer the U.K. model because we have a similar situation to that of the Government Communications Headquarters in the U.K. My U.K. counterpart appears before that committee and they have developed a relationship that, from both directions, is productive, frank and gives parliamentarians the opportunity to understand what we do and, over time, to shape it and influence it. This is a good initiative, but I would add the caution that it has to be done right or it could get in our way. If there were any public spillover of discussions, it could slow us down and have international repercussions.
Senator Joyal: I understand that you have an agreement with the U.K., New Zealand, Australia and the United States to share information. What conditions in that agreement would prevent parliamentarians from disclosing information held by those countries, even internally among a group of Privy Councillors?
Mr. Coulter: I believe that if we achieve the right formula, I would be talking about that relationship and sharing information that I receive from those counterpart agencies. We would be able to talk about many things that we cannot talk about here. The partnership is strong. I met with British parliamentarians and we did not discuss anything that would be classified as ``sensitive.'' However, they talked to me about how they developed the relationship with GCHQ and I talked a little about the evolution of CSE. The committee has been highly successful in the U.K., and I know that my U.K. counterpart feels free to discuss partnerships.
We have other international relationships as well. The group of countries you referred to is the tightest sharing ring that goes back to the Second World War. It has been longstanding and successful but the world is evolving and so other partnerships are necessary, on our part and our allies' part. I belong to a European group that includes a number of countries, among which there is some sharing because there is much interest in terrorism. The five countries you named, including Canada, form the tightest and most historical partnership that we have had. It is strong and the trust level is such that we could probably talk about it with a cleared committee quite openly.
Senator Joyal: Could you clarify what we should understand? At the bottom of page 10 of the French version of your presentation, you say that the information is essential for international relations, defence and security. I understand the reference to defence and security but ``international relations'' is much broader. One country might spy on another to determine a stand on particular issue. International relations is an open-ended domain that includes everything. It does not apply to defence and security only. Some countries that seem to pose a greater risk to the Western world might need to be monitored. International relations is such a wide field that you could be led to believe that those five countries, including Canada, have a capacity to legally, according to their respective legislation, monitor other countries and share information that might not be relevant to defence and security among themselves. According to your comments and to the way in which the bill was drafted, the act is an open door to all kinds of information.
Mr. Coulter: ``International affairs'' can be a broad term, but ``essential'' is still used. We are in the business of providing the government with information that gives us national advantage, which is one reason that we do not share all information with the four other countries that you named. If we produce information that gives us a purely national advantage, we will inform the relevant government decision makers and not our allies; and we share a great deal of information with our allies. The subject of terrorism engages all of us, but when it comes to international affairs in the sense of national advantage, there are some things that we do not share with our allies. However, there is still an essentiality test in terms of it being a very high bar. We are not talking about noise, but rather about information essential to our national interest in other ways. That is an important aspect. Currently, we are highly focused on the security dimension. More than 80 per cent of our efforts are related to security or support to military operations. We are doing what we can to create national advantages elsewhere, but it is limited.
There is another aspect of our legislation that is important to understand. Our work must be consistent with Government of Canada priorities, as stated in the act. Annually, there is a cabinet decision-making process to determine and establish the priorities to be pursued by CSE. I cannot freelance, which means that I cannot ask about a specific country. I have to scrupulously follow the Government of Canada priorities, which are highly focused in certain areas.
The Department of Foreign Affairs has its priorities; CSIS, by its act, has its priorities; and Defence has its priorities. Those are the big priority-setting organizations.
There are other priorities, but we also scrub those down and we cannot even do all of that. We are very focused on the highest end of the government's priorities in our particular organization and collection, and it has to be essential. Before we can produce anything that touches on Canadians in any way, it has to be essential to those priorities, which is a big threshold to cross. The prism that is put on this by not only my organization but also by the commissioner is why this should be anything but delayed. Then you have to go through the exercise of saying how essential is this? When there is something essential, it is signed off on in CSE at a very high level, by somebody reporting directly to me; my Deputy Chief for Foreign Intelligence and one DG responsible for this, in his absence. Only three people — myself, my deputy chief and the Director General for Foreign Intelligence — who can sign off on these. We have to make sure it jumps over the bar that it is essential to the government's highest priorities, or I am in trouble with the justice department and the commissioner, and we have hurt ourselves. Even if I wanted to I could not, but I do not want to. We are focused on the essential issues.
Senator Joyal: Suppose you receive a request from one of those other four countries that does not meet the test of one of those essential elements of foreign affairs? What is the procedure then? How do you deal with it? Do you simply refuse it, do you have to seek authorization or can you, under the agreement, move ahead because it was requested by one of your partners and you are bound by it?
Mr. Coulter: Two things: One is with respect to our allies asking us to do something. I cannot do it if it is not consistent with Government of Canada priorities. On a reciprocal basis, we have that kind of relationship where they can ask us for something in our priorities and we can ask them for something in our priorities, and if it is consistent with theirs, they will do it. We get a lot more from this partnership than we ever give and that is a large aspect of being effective these days, partnering with others. We only do what is consistent with our priorities.
The essentiality test is for the use of any communications that has any touching point with Canadians or persons in Canada. We do not share with the United States anything that would involve one-end Canadian. I want to make it very clear, that is not something we do. That would be for national purposes. I could see, in theory, where we could have some kind of government discussion when something has a huge national security implication for another country, that we would share information about this in some form. The kind of thing we collect, that very small volume of information that we have that has an end in Canada, is shared within Canada and not within our partnership community.
Senator Joyal: You have said if it meets the essential priorities, the answer would be yes, you would look into it. If it does not, has it happened that you went to get that authorization from cabinet or from your minister?
Mr. Coulter: No, we would not get to it. This is done by allies on a best efforts basis and without making a big deal out of it. We would not be able to fulfill a request because our legislation says we have to follow Government of Canada priorities.
I can tell you that the National Security Agency in the United States is so focused on terrorism that all of the requests these days are in that zone. That is what we are doing the most of, so the chances currently of that happening are very small.
Senator Day: Just so I understand the national priorities. Suppose the national priorities change during the year between your annual exercises; where do you get that direction? Does that come from the Minister of National Defence or Privy Council Office?
Mr. Coulter: We are shifting gears here in terms of the government exercise to make it perhaps semi-annual, or at least have a review of the priorities, and we have done that on one occasion already. That makes enormous sense because of the dynamic world we live in.
A lot of thinking goes into the exercise. We are pretty good at setting the top priority areas. We have also found that we need to operationalize that more specifically. There is a PCO-chaired requirements committee. It is chaired by the Executive Director of the International Assessment Staff, and we play into that on a daily basis. Basically, our story is we cannot do this. We can do this new angle, but we will have to take something off our list. That is a very intense discussion because no one wants to take anything off the list. On the other hand, sometimes we have to shift gears when new requirements come up; troop deployment to a new location where the Canadian Forces needs intelligence, a new diplomatic crisis of some sort. We have to be able to shift gears.
During the four years I have been Chief of CSE, the priorities themselves seem to be very well done. The operationalization of them more specifically is something I keep arguing we need to keep working on, but that is going in a good direction. We are able to give a description to a small group of interdepartmental people at a fairly high level of what we are doing. They can say, we would like you to do more of this, and we can get into that discussion about we will have to drop this or that or both to do that. People care a lot about the results of those discussions and that is what guides us.
Senator Day: I am taking your answer as saying you keep priorities general enough that you have flexibility within the year to move if you have to.
Mr. Coulter: Let me give you a Cold War example. The priority may have been the then Soviet Union, but there were a hundred ways you would tackle their military command and control, communications and issues like that. You would have the argument that whether you are after the navy or the aviation or what is the weight of effort, and those kinds of practical things within what cabinet would want to endorse, which is the huge weight of effort against that target, given that in those days that was our main adversary.
Senator Day: You indicated earlier that you report to the Minister of National Defence through someone in the Privy Council Office? Did I hear you correctly?
Mr. Coulter: I do. My reporting relationship, by legislation, is to the minister, through anybody that he delegates this to. I currently report for policy and operations through the National Security Advisor in the Privy Council Office, Mr. Bill Elliott. He replaced Rob Wright last week. For administration and finance, I report to the Deputy Minister of National Defence. I have everything, the minister has everything. There are two deputies who have responsibility for us as well, very senior people. The four of us often meet for discussions.
Senator Day: I was intrigued by your comment in your opening remarks that you provide intelligence to hundreds of clients across the federal government. Is that correct, hundreds of clients?
Mr. Coulter: Yes and the biggest department with clients is Foreign Affairs.
Senator Day: You break down Foreign Affairs into a lot of different clients?
Mr. Coulter: That is correct.
Senator Day: I was starting to think this will be tough for you to control.
Mr. Coulter: I do not think there are that many departments and agencies.
Senator Day: Do you have a memorandum of understanding with these hundreds of clients as to how they would use the information that you give them?
Mr. Coulter: I hope this word does not resound with anyone here, but we indoctrinate them.
When they leave their positions, we de-indoctrinate them. Some of the key people across government are permanently bound to secrecy by the Security of Information Act, but the key is they are all top secret cleared and special access cleared for our kind of information. It is a specific security clearance that involves indoctrination, and we talk to them about the importance of confidentiality.
Senator Day: Does that include information that you get from these five countries and others?
Mr. Coulter: It very well may.
Senator Day: Can we assume it might also be the case in, for example, Great Britain, where they may have hundreds of clients to whom they pass information that you give them?
Mr. Coulter: It is possible if we have chosen to pass it to them. We have done it with an analysis of to whom it will go.
Senator Day: You have control of what you send, but once you send it to the general agency with which you have a relationship —
Mr. Coulter: It is understood to be in very tight circles. Let us use a Cold War example. If there is a piece of intelligence CSE produced on a certain development in the then Soviet Union and we shared that with the U.K. and the United States, it would be on the understanding that they would share it with their key decision makers, and they would be in charge of that.
Similarly, if the United States or the U.K. or Australia passed us similar information, then CSE would make the determination as to which clients to pass it to.
There can be certain types of intelligence that come with caveats that they be shown only to a certain group. We use those ourselves. There are circles within circles. It depends on the sensitivity of the information.
Senator Day: Does your memorandum of understanding as to how the information will be used by a foreign government involve what you have just described to me, who they might share it with and how far down the line it might go, or do you deal with each piece of information that you share? That would be almost impossible, to put a flyer on each piece of information.
Mr. Coulter: There will be rare circumstances. We have ``Canadian eyes only'' material. Then we determine who would see it within the Government of Canada. That is a category of information.
Then there is releasable to ``five eyes.'' That is what we call our group of five. We could release it to one country. A determination like that could be made because it is only relevant to one country. We can also, in a rare circumstance, say ``to be shown only to the President of the United States,'' or something like that. That is a determination we make. We have the ability to put caveats on what we would do, but the two main categories are releasable internationally to this club of five and Canadian eyes only.
The Chairman: I wish to thank our witnesses.
We welcome Mr. MacLeod, President of the Canadian Association of Chiefs of Police; and Vince Westwick and Frank Ryder, co-chairs of the law amendments committee.
[Translation]
Mr. Vince Westwick, Co-Chair, Law Amendments Committee, Canadian Association of Chiefs of Police: Madam Chair, I am the Co-Chair of the Law Amendments Committee of the Canadian Association of Chiefs of Police. With me today is Chief Edgar McLeod, President of the association and Chief of the Cape Breton Regional Police Service, and Superintendent Frank Ryder, the other Co-Chair of the Law Amendments Committee.
The CACP is an assembly of almost 950 chiefs, deputy chiefs and senior police officials. Our members represent more than 130 police services from every region of Canada.
One of the aims of the association, through its Law Amendments Committee, is to provide the government with recommendations on legislation relating to crime and public security. We are happy to take part in your comprehensive review of the provisions and operations of the Anti-terrorism Act.
I would now like to turn to Chief MacLeod.
[English]
Mr. Edgar MacLeod, President, Canadian Association of Chiefs of Police: On December 4, 2001, the Canadian Association of Chiefs of Police appeared before the Senate committee on Bill C-36, chaired by you, Madam Chair. Mr. Westwick was part of that delegation, and he made representations to this committee reflecting the CACP's view of Bill C-36 and the directions that the Canadian government was taking with respect to terrorism, both from a legislative and a leadership standpoint. The CACP actively participated in the debates surrounding the important issues that were raised in Bill C-36.
In December of 2001, we supported Bill C-36, and we are pleased to return here today to reaffirm our support for the Anti-terrorism Act. May I say that our principal submission in December 2001 was that government form a small, single agency to address terrorism, to coordinate law enforcement response to terrorism and to develop best practices for police in all jurisdictions.
The creation of Public Safety and Emergency Preparedness Canada has moved in that direction. We applaud the progress that the Deputy Prime Minister and her colleagues within PSEPC are making in developing and supporting a more integrated approach to policing and to law enforcement response to terrorism.
We regret that witnesses before this committee and elsewhere agree that the threat of terrorism in Canada is a reality. We regret that Canadians must have their lives impacted in significant ways as a result of the threat of terrorism. We also regret that police resources already stretched have had to accommodate more programs and more training to ensure readiness, whether at the municipal, provincial or federal levels.
The Canadian police community has responded professionally, cooperatively and collectively, and we shall continue to do so. In early January 2002, the Canadian Association of Chiefs of Police, with the support of the then Department of Solicitor General, hosted an executive seminar for police leaders in Canada. Since that date, police have continued to learn, adapt and grow. Out of the rubble of the World Trade Center there has grown a new direction in cooperation within the Canadian police community. While police in Canada have always collaborated with each other, police at the federal, provincial and municipal levels now work more closely in an integrated way to ensure that the citizens of Canada are safe and their communities are protected.
That being said, our association recognizes the need to elevate this notion of an integrated police service delivery approach to an even higher level. At our 2004 annual general meeting held this past summer in Vancouver, we passed a resolution calling upon all orders of government to come together to discuss and eventually develop and implement an integrated policy framework to move policing in Canada to the highest level of integration. A policy framework endorsed by all orders of government will go a long way toward bringing clarity to the roles and responsibilities of each order of government.
To this end, I am pleased to report that the CACP recently addressed the federal-provincial assistant deputy ministers' committee on policing. Beside us was the Federation of Canadian Municipalities as well as the Canadian Association of Police Boards. They were also invited participants at this pivotal meeting.
The meeting concluded with a solid consensus that the concept of an integrated policing framework was very worthy of pursuit. Public Safety and Emergency Preparedness Canada stepped up to the plate and have engaged consultants to scope out the next practical steps in pursuing this agenda. The CACP is anxiously awaiting the results of this report.
In preparing for this presentation, we wanted to begin by outlining the principles behind the Anti-terrorism Act. However, after reading the remarks of the Minister of Justice, we realized that anything we could say would pale in comparison to the detailed analysis that he presented to this committee in February. Suffice it to say that we support and endorse those foundational principles that were so elegantly expressed by Minister Cotler.
Before asking Mr. Ryder to speak to you about the preventive principle referred to by Minister Cotler, I would like to address an issue that has been raised by the committee. The topic of racial profiling has been indicated by members of this committee as a very serious concern. At the outset, let me assure you that the Canadian Association of Chiefs of Police is a strong ally of all of those who oppose racial profiling. Our association of police leaders unanimously passed a resolution at last year's annual conference that says that the CACP is committed to the preservation of democratic freedoms, human rights and individual dignity, and that our members will exercise leadership by initiating or strengthening programs and strategies that promote bias-free policing, giving particular attention to public accountability, policy making, management, supervision, equitable human resource practices, education, community outreach and partnerships.
The Law Enforcement Aboriginal and Diversity Network, which we refer to as LEAD, was developed to achieve a common professional approach by all Canadian law enforcement agencies to relationships with Aboriginal and diverse communities. The LEAD Network is a partnership between the multiculturalism program of Canadian Heritage and the CACP, and it was facilitated by the RCMP.
The CACP and the federal government have partnered to turn a pilot project on diversity awareness into a permanent, organized network that aims to educate, retrain and to share lessons learned by police agencies across this country.
It is in the best interests of policing to establish strong links and trusting relationships with the many diverse communities we serve.
Even the perception of racial profiling can lead to mistrust. Therefore, Canadian police leaders will strongly promote fairness and equality and say loudly that there is no place for racial profiling in policing.
I would now like to ask Chief Superintendent Ryder to speak to more specific provisions of the Anti-terrorism Act.
Mr. Frank Ryder, Co-Chair, Law Amendments Committee, Canadian Association of Chiefs of Police: Thank you. The sunset clauses apply to sections 83.28, 83.29 and 83.3, provisions relating to investigative hearing and recognizance conditions, and so the CACP would like to address specifically the importance of these sections. Speaking about prevention as a foundational principle, the Minister of Justice said the following:
A core concept of our anti-terrorism law...proceeds from a culture of prevention and pre-emption as distinct from reactive, after the fact, law enforcement. This includes the range of international terrorist offences domesticated into Bill C-36 — which seek to disable and dismantle the terrorist network itself — as well as the investigative and procedural mechanisms, such as preventive arrest and investigative inquiry, that seek to detect and deter, rather than just prosecute and punish.
Canadians would agree that preventing terrorism on Canadian soil is a most worthwhile goal. The question is how can that objective be achieved legislatively? We know that in order to meet the high standards that Canadians and their courts demand, such legislative prevention must meet several important goals: It must be consistent with the Canadian Charter of Rights and Freedoms; it must be respectful of human rights; it must be proportional to the threat being presented; it must involve a judicial officer; and it must have procedural safeguards. It is the submission of the Canadian Association of Chiefs of Police that the investigative hearing and recognizance with conditions are the proper and appropriate legislative response and that they meet the high standards that Canadians demand.
Let us look at each for a moment. The provisions for recognizance with conditions are not new to Canadian criminal law. The power of a judge to require a person to enter into a recognizance, formerly called ``peace bonds,'' is longstanding. In the mid-1990s, following extensive controversy over high-risk offenders being released from custody at warrant expiry, Parliament introduced section 810.1, where there is a fear of a sexual offence, and section 810.2, where there is a fear of serious personal injury. Canadian police have used these sections for several years to provide comfort to communities and to attempt to prevent serious crimes from being committed. They are an effective and logical legislative preventive tool approved by the Canadian courts. This preventive tool has been modified to apply to terrorist situations. There are two ways for the police to use this section. First, they must obtain the consent of the Attorney General of Canada, or the province, depending on the jurisdiction. Then they must lay an information and bring the person to court. These steps are not required only when there are grounds for the information by reason of exigent circumstances such that it would be impractical to lay an information, or if an information is already laid and the peace officer suspects on reasonable grounds that the detention of the person in custody is necessary to prevent terrorist activity. The concept of exigent circumstances is used currently in Canadian criminal law, for example, the Feeney warrant. Police officers understand, and the courts enforce, the concept of reasonable grounds.
Investigative hearings have passed the scrutiny of the Supreme Court of Canada. These hearings are not punishment, but rather an opportunity to obtain information that can be used to prevent a terrorist offence. The section contains a wide range of procedural protections, including the consent of the Attorney General. Both of these provisions are preventive by design. In each case, the intent is to bring the person in question before a court, under the supervision of a judge, to effect the preventive statutory purpose. This is good law, preventive in nature and worthy of the continued support of the Parliament of Canada.
On behalf of the CACP, we are especially grateful for the opportunity to return to this committee to discuss these important provisions. We are available to answer your questions.
The Chairman: Thank you, gentlemen, for your return visit and your presentations. Before we begin questions, I welcome to today's proceedings a delegation from the Senate of Malaysia, which is interested in this issue.
Senator Stratton: It has been a rather interesting discussion today, including the information on racial profiling. Gentlemen, do you perceive any reason for the focus today on racial profiling? Were you asked to focus on that?
Mr. MacLeod: No, we were not asked to do that. Racial profiling, as you know, has become an issue across the country and there have been numerous inquiries. For us, it has only to be raised in jurisdictions, whether it is true or not, because we deal in perceptions in communities. We think that it is important to address the issue and be proactive in dealing with matters of racial or potential racial profiling.
I just returned from Vancouver, where a great deal of enthusiasm has been created by front-line officers who work full time on these diversity issues and the sharing in and building of this network. We are no longer waiting for high- profile incidents that require us to react. Rather, we are trying to build stronger relationships and a nationwide network such that someone in one part of the country can plug into that network and learn from someone in another part of the country. It is an important issue, and I know that it was raised earlier, but the focus was our decision.
Mr. Westwick: Senator, in part it is a result of the research in preparing for the presentation today. We looked at the transcripts of some other witnesses' remarks and noticed that senators had raised the issue before. We decided to put it on the table in a proactive way.
Senator Stratton: If you are looking at a review of the anti-terrorism legislation, to follow on from Senator Andreychuk's question this morning, then surely you would be more interested in what is needed. In other words, you have not spoken to the review of the act, so you are telling us, in essence, that the act is fine and that no improvements are needed. Is that what you are telling us, indirectly, by not giving evidence on improvements? I find that difficult to comprehend.
Mr. MacLeod: We are comfortable with the act as it stands so for us there is no issue.
Senator Stratton: The act is perfect.
Mr. Westwick: It is not often that we are given such an opportunity. Normally, we come before Parliament to ask for additional provisions. One issue was mentioned this morning that put the matter of lawful access on the table. It is not part of this act but it is a critical piece of legislation.
Senator Stratton: Was that the wiretapping aspect?
Mr. Westwick: Yes, it was about wiretapping and bringing the provisions of Part VI of the Criminal Code up to date with the advances in technology. That is a critical piece of proposed legislation that is not yet before Parliament, but we look forward to it. We would not miss the opportunity to encourage parliamentarians to review that seriously because it is a critical piece of proposed legislation that affects not only this area, but also a whole range of other areas.
Senator Stratton: Could you describe what you would like to see in this area of proposed legislation in respect of wiretapping?
Mr. Westwick: The proposed lawful access legislation that the police and intelligence community is asking for is basically to modernize the provisions of part VI of the Criminal Code, which was brought into effect in the mid-1970s, and allowed and provided for judicial authorization to intercept private communications. I was in policing at that time, and a police officer would shinny up a telephone pole and put two alligator clips on the particular wire that they wanted to intercept, and that is where the ``wiretapping'' expression came from.
We are all aware of cellphones and an entire range of extensive technology that in some cases we do not have the practical capability to intercept. There simply is not built into the technology the ability to intercept and/or there is not the legal authority because it is not covered under the law. Things like email and the Internet, the BlackBerries that everyone is carrying, are not provided for under the law, and it creates a huge investigative gap.
We would be very anxious to see that proposed legislation and all the other technical components that go with it given most serious attention by both Houses of Parliament.
Mr. MacLeod: With respect to the racial profiling, why we raise that and why we do not have any issues with the legislation, for us it is more important to look at the context in which the legislation is applied. That is why, for me, the biggest issue is to ensure governments understand the necessity for an integrative policy framework, how we apply things across provincial, municipal and local government jurisdictions. Sixty-five per cent of the police officers in this country work at the local government level, yet we very much depend on their information, input and practice in terms of the practical application of that legislation, and all of the other legislation.
Mr. Westwick just mentioned the lawful access, and I could talk about extra-police jurisdiction and the ability to move police across provincial boundaries to conduct investigations without going through a complicated process. Those are all issues that are very much related to this legislation when you put it in context. That is what is important to us.
Senator Stratton: Thank you. I appreciated your last remarks because it is hard to believe that any government, let alone this one, would achieve perfection in a bill. If there are concerns about the practicality of carrying out what you need to do, this committee should hear it and be very aware of it.
Senator Fraser: Mr. MacLeod, I will put to you the same question I put to Mr. Zaccardelli this morning.
There is a common assumption that some form of profiling is a useful tool in criminal investigations. In your mind, what is the difference between that and racial profiling? What is it that you are so opposed to?
Mr. Ryder: I will take a stab at answering that question. The business of police work is we receive information, we analyze it and we act on it. If necessary, we may have to move to enforcement or whatever the case may be. What I would call criminal profiling, if you wanted to use that terminology, would be when we receive information relating to specific activity of groups or individuals who are engaged in a certain type of criminal activity, certainly not focused on race, religion, any of those other variables. That would be strictly information related to a specific type of criminal activity.
Senator Fraser: There is a fairly widespread impression in certain communities in Canada, notably the Muslim community in general and the Arab community in particular, that there is racial profiling against them. Why is that perception so widespread if everyone is opposed to it and says they are not doing it?
Mr. MacLeod: I would suggest that if you look at the context and the efforts of our neighbours, it has been concentrated in the Middle East. I talked about this LEAD Network — and it is not just words — about how important it is to work closely with the Muslim community, the Black community, all the diverse communities, and our Aboriginal peoples.
If we get that right and do not wait until there is an accusation or an inquiry, if we do this in a proactive manner on a day-to-day basis — and that is what we are starting to achieve right now — you build the confidence and trust in those relationships with those particular communities. Often, it is not racial profiling. It could be just the perception of racial profiling. That is what we have to deal with on a daily basis. It is not just a project. It has to become a way of doing business. Quite frankly, we have not done a very good job of that. If you look at the demographics and how the face of Canada is changing, we cannot sit back. Governments cannot sit back and wait for inquiries. Again, that places this legislation into the context of how we are working. We have to work with those diverse communities and bring them onside. It is never acceptable to stop or hold someone on the basis of their colour or creed. It is not Canadian. We have to build that trust in the community, and we have to talk about this and create the mechanism for dialogue.
That is what we are doing with this LEAD Network, and we are pretty keyed up about it. We are working hard. We have front-line officers working on this. This is not just a chiefs' initiative. I can only see good coming out of this. We are going to provinces, and we will be going to municipalities once we get rolling, and we will say, ``Are you onside?''
Senator Fraser: That is really good to hear, but I am still trying to understand situations as they have evolved. In the first month after September 11, 2001, when police across the country were scrambling, nobody knew where the next threat would come from, how serious it was, how immediate it was, where everybody was. Do you think it is possible that in that initial scramble there was what amounted to racial profiling that might have created this concern that now lingers, even though you and every law enforcement person we hear from says, ``Not only do we not do it, we are working like demons to ensure that everyone on the force understands that you must not.'' Do you think it maybe happened?
Mr. Ryder: As you describe it, I think it would have led to a climate whereby there would have been a perception of racial profiling, no doubt about it. In today's world, when we have CNN, the kind of coverage that happened post-9/11 was phenomenal. I do not think that necessarily leads one to believe that racial profiling was occurring. It certainly could lead to a perception that there could have been racial profiling. From a Canadian police leaders' point of view, there are no policies that endorse racial profiling of any kind.
Senator Fraser: I am not suggesting there ever were policies. I am talking about actual, live police officers out there scrambling, almost feeling themselves to be in a vacuum, reaching for whatever information they could and making some bad judgments in those initial days, weeks or months.
Mr. Ryder: I am not sure I have the information to be able to provide that kind of an opinion because I do not know which bad judgements you are referring to.
Senator Kinsella: Just to pick up on a point that was raised by Senator Stratton, as far as your organizations are concerned, the legislation as it presently exists does not require amendment. You are satisfied with the basic model we have. Is that correct?
Mr. MacLeod: That is correct, yes. We have to work on the context.
Senator Kinsella: Have you looked at items that might be missing that ought to be added?
Mr. MacLeod: I defer to our law amendments committee. They are on the ground dealing with the legal aspects.
Mr. Westwick: By and large, we are comfortable with the legislation. There are a number of things about it that we particularly like; the creation of the specific offences. As we said in our opening remarks, we are supportive of the investigative hearing. We know it is controversial, but we feel it is a proper balance. We are very pleased with the recognizance with conditions. There are some technical aspects surrounding the wiretap provisions, not the lawful access aspect, but a few details, nothing of huge significance.
Senator Kinsella: Are you familiar with the Patriot Act in the United States?
Mr. Westwick: Only in general terms.
Senator Kinsella: Is there anything in there we should take a look at in terms of this review? Nothing stands out?
Mr. Westwick: I am not sufficiently familiar with that act.
Senator Kinsella: Let me get to the final point of this issue. In the bill as adopted by Parliament, we had some safeguards, including a sunset in one provision, this periodic review mechanism. I take it from your answer that you would be satisfied if the legislation maintained those kinds of oversight provisions?
Mr. Westwick: Absolutely. When we appeared here in 2001, we had no difficulty with the sunset provisions and we would have no difficulty with those provisions now.
Senator Kinsella: When you were here at that time there was a discussion around the importance of training officers on the new instrument. If I recall correctly, there was something close to an undertaking that there would be training conducted by provincial and municipal forces, other offices, particularly on the preventive arrest and investigative hearing provisions found in the act. I wonder whether you could advise the committee whether any such training has taken place.
Mr. Westwick: Yes, I can. As we mentioned in the opening remarks, the CACP, with the support of the then Solicitor General's department, held an executive seminar in January 2002. It was quite a pervasive review of the act at an executive level. We were very pleased that on the last afternoon, the draft or first run of a CD that was prepared for front-line officers was able to be displayed. That CD has been used extensively across the country to explain the provisions.
The point you have to remember is while it is important that police have a good working knowledge of this act and its provisions, the officers who would be conducting these kinds of investigations and making recommendations to senior management concerning an investigative hearing or recognizance with conditions are working in a very specialized area. You would be dealing with the most experienced police officers and a fairly small cadre who would be involved in this kind of investigation. They are highly trained not just in the provisions here, but in criminal investigations at large. They would be well experienced in what would be necessary in terms of disclosure and the development of a major case for court purposes.
Senator Kinsella: As we all know, one of the security mechanisms that are available to anyone who uses the Internet seeking whatever kind of service, whether it is a financial service, an information service or a subscription to news services, is the personal identification numbers, the PIN numbers. In police work in Canada, do the police have access to any registry of PIN numbers, whether a bank's registry, an insurance company's registry, the local newspaper's registry or the local library? To what extent are PIN numbers in Canada protected by the right of privacy?
Mr. Ryder: Unfortunately, I would say that they are probably more accessible to those with a criminal intent than to police agencies. Clearly, we do not have access to that kind of information. In my day-to-day job, I am a commander of an investigation bureau and have an organized crime section under my command, and I am not aware of any areas where we can access that kind of information. I also have the anti-rackets section under my command. Where there is an opportunity to exploit certain systems, we have some very skilled criminals out there who try to access information through the Internet, et cetera, to get personal information to further their criminal activity. The entire issue of identity theft is a real problem for policing across Canada.
Senator Kinsella: Whether it is a criminal investigation or an anti-terrorism investigation, the mechanism of going before a judge to seek the warrant to get that kind of information would be the process used?
Mr. Ryder: That is right.
Senator Kinsella: I have listened to this discussion about racial profiling; I have an interest, as does everyone else. I am more interested in the language skills of investigators in Canada in whatever agency. Have your members in the different departments, particularly those in the big cities, found this out? We had testimony from the Commissioner of the RCMP some time ago that in the city of Toronto, there are some 110 languages other than English and French being spoken. In order to do effective policing in a city where 110 different languages are spoken, it seems to me that it is not the participation of members of the given ethnic cultural community in the police force that would be important, rather, it would be the knowledge of those officers of the customs and the ways, and most importantly, the language and the dialects, et cetera, of those communities.
My question is how are police forces in Canada doing, particularly those who are involved in anti-terrorism inquiries, in terms of language acquisition of investigators? To what extent is that a problem?
Mr. MacLeod: First, in general training it is a huge issue, in terms of liabilities, in getting the job done. It is a capacity issue for sure. We talked about training on cross-cultural awareness. It is a challenge. I am not saying that we cannot do it, but it is a capacity issue, because when you are training officers they are not on the street. You spend time training, and you need to do that to be proactive and to be strategic in your thinking.
Again, you are the police chief, you have to train however many — in the case of Toronto, thousands of officers. How do you achieve that within a budgetary framework, knowing you have to take officers off the street and off duty to provide all of this training? That is a challenge.
It is also a challenge for us. I keep coming back to the issue because I think it is important for me to establish the relevancy of this integrative policy framework to how you pose that question, because whether it is anti-terrorism or whatever, we are one of the few services in this country that has hands-on involvement of three levels of government.
The question needs to be asked. Notwithstanding that the police get together, how often have the policy-makers gotten together and had a good discussion about how we can support front-line policing so that we can get to the training and provide and leverage our resources?
Senator Kinsella: It seems to me language training is one issue. In my estimation, it would be difficult to train people in whatever language we are speaking of to a level of proficiency that would enable them to pick up the dialect and the slang, which is why affirmative action or employment equity hiring, looking for those special skills, would be important. Do you have any idea as to the kind of hiring that has been going on and the language skills that they were looking for in that hiring?
Mr. Ryder: I can only speak on behalf of the Ontario Provincial Police, and I do not have specific numbers. The section within the OPP that looks after the area of anti-terrorism is comprised of many members from different ethnic and cultural backgrounds. They were recruited. There are several different language capabilities within that section, and there are some who speak many languages. Is it enough? The answer is clearly no. We have to increase the numbers, obviously, when we want to have outreach into all the diverse communities. Language and culture can be a huge barrier. That is something we are always trying to improve on.
Senator Kinsella: I raised this question with other witnesses because the Auditor General flagged it as a problem. In times of national emergency, she seemed to be indicating, the chain of command and control is not as tight as it ought to be. You are representing a variety of police agencies that could be playing a role. Who will you take your orders from? Do you have concerns about this issue? You can come up with any example of a crisis. Who takes control if there is a dirty ship in the Port of Sydney? Will it be the Sydney municipal force, will it be the RCMP or will it be the military? Is it a problem, particularly for those of you representing civilian municipal or provincial police forces, that there may be an interface with the military and with CSIS, et cetera?
Mr. MacLeod: That is a very good question. That age-old question about the chain of command and how it works is always relevant. It goes back to the emergency measures training we did for years in Arnprior. Police now understand about and are more focused on getting the job done, so there will always be those discussions. Notwithstanding that, a clear policy framework does not exist. Thirty or forty years ago, we were not concerned about working across so many jurisdictions. The federal government did this set of duties, and the provinces did that, and the local governments did whatever the provinces did not want to do and handed down to them.
We have moved forward. The pressure is on to knock down the silos and barriers at government level and come together. How do we achieve that when we have a history of three tiers of government? The police have done more than their share. We have sometimes learned from serious mistakes, and we are sharing and pulling together. However, there are limits to what we can do there.
The question about Sydney harbour is a good one, because somebody might set the roles federally, saying that this needs to be done, but there seems to be a problem in how it translates into getting the job done at the local level. I can tell you that any community is concerned with local crime issues. You do not have people walking around local streets talking about national security. They are talking about the drug problem and break and enters; they are in that local groove because that is where they live.
Governments need to do more in that area to bring us together. The urge to merge and work across government will not go away. It will get greater. We are increasingly working in an integrated way, and not just in our own country. You can project that out to international borders. There is pressure to do that because of technology, as Mr. Ryder had indicated. To criminals, boundaries and structures and silos do not mean a thing. They operate with impunity internationally, while we are trying to work within the structure. They pay no heed to that. We need to do a better job in that regard, and that goes back to the context of this legislation, or any other legislation we are talking about here, the training and how we do it.
Senator Joyal: I will touch upon the issue of racial profiling. If we share a common concern about the perception that has been created, I wonder how much the police forces in Canada have improved in terms of recruiting especially in the Muslim community or Arab community in Canada. I will ask a simple question: How many police of Arab origin do you have in your national association?
Mr. MacLeod: I am not equipped to give you specific numbers. I can tell you that most, if not all, agencies have recognized through human resource practices that we need to do a much better job of reflecting the community in hiring. We spend a lot of time trying to figure out strategies to address that problem. I can honestly say we have a long way to go. We are making improvements. The first step is recognizing that we need to do something. We have seen inquiries, such as the Stonechild inquiry. We want to put ourselves in the position where we can reach out to those communities when there is not an inquiry going on and build those linkages and bridges. There is no question that we have to do a better job. We are moving in that direction with the LEAD Network. The federal government has invested a substantial amount of money, a little over a million dollars, in bringing all the police agencies together, and quite frankly, the CACP will be holding our committees accountable to ensure that we are not just talking about this from a conceptual point of view. We want to come before this committee and other committees and say, ``These are the things we have done.'' We want to hear back from diverse communities, saying, ``We feel better about our police agencies. We feel strong linkages.'' The questions and the points you raise are important and relevant, and I can only tell you that the police leadership is trying to deal with them. I feel optimistic that improvements will be made.
We have learned some hard lessons the hard way. We have seen what has happened across this country. Police take this personally, and we should. Our HR committee is dealing with how we get people from diverse communities to apply to join police departments. Many cultures had a non-trusting relationship with the police where they came from. How do you change that? You can only change that by trying to build interactive relationships and creating community dialogues, and this is what we are trying to move into now.
Senator Joyal: In your opinion, you do not have all the tools at hand to achieve the desired communications strategy and programs to inform schools and cultural communities on a regular basis about your goals to involve the community in the ``law and order responsibility of any society.''
Mr. MacLeod: I can say with confidence that today, and most days, somewhere in communities across this country police officers are on the ground dealing proactively with multicultural, diverse community issues. I am comfortable and confident in saying that there are many success stories. Unfortunately, we do not know about many of them because they do not make the front pages of our newspapers. This would improve if we were to create a LEAD network whereby the information would be shared. We could build networks that are linked electronically. We might know that someone in Calgary has dealt with a specific issue in a diverse community and that information could be shared with police agencies across the country to assist in resolving the same issue elsewhere. We need communication as a tool to improve and impart our success stories across Canada. We hear about most of the failures but not about the successes. The idea of such a network ties back into this act and why we are here. If the people of diverse communities have trust and confidence in our policing, then those perceptions begin to disappear.
Senator Joyal: Am I right in saying that you have not developed all the measures to evaluate your success in terms of involving the various cultural communities with police forces in developing ways to maintain the security objective of the legislation?
Mr. MacLeod: That is a fair statement. We have some evaluations of local programs at local levels to measure that success. However, we do not have the mechanism in place nationally to measure success. We need to get a better handle on that.
Senator Joyal: On the objective of integration, which you expanded on in your presentation and in the follow-up discussion with Senator Kinsella, I do not think that you would find any reservation around this table. However, to integrate you have to define the priorities and ``emergencies.'' How did you approach this overall objective of integration in relation to the objectives of the act, including the security aspects of issues such as SARS in Ontario, avian flu and bacteriological warfare, which could spread quickly through a region? What is your priority? What aspect of your activities should be the focus of the authorities and the Minister of Public Safety and Emergency Preparedness in relation to their provincial counterparts to initiate such an objective?
Mr. MacLeod: We need to discuss this further, but I will review our current position. We passed a unanimous resolution on integrated policing in Vancouver. Police leaders said that clearly in a resolution. Police agencies — the CACP, the RCMP, the OPP, the Sûreté du Quebec and municipal agencies — are coming together to discuss this format. We need to ratchet up governments talking across three levels. We approached the Deputy Prime Minister and she was enthusiastic about this. We talked about SARS and other conditions that created the need for urgency and where this has to begin. Governments need to understand their roles and responsibilities, because if there is confusion or if you create an environment such that everyone is responsible and the responsibilities at the government level are not defined, then you will have trouble building in accountabilities. If three levels of government are involved in a specific action, such as with SARS, then it is important for governments to define it. Once that is done, you begin the process of building the policy framework of integrated command structure and approaches.
We met with the federal, provincial and territorial deputy ministers and there was a favourable response. The Canadian Federation of Municipalities was also at the table and they have engaged consultants to explore what you have just asked about. Policing is a big, complex issue, and when you involve three levels, you can well imagine what we are dealing with. We will begin with a definition of ``integrated policing'' and move forward from there. We are delighted that the Deputy Prime Minister embraced the concept. We are passionate about it and so we will keep pushing until we have more policy framework discussion. We practitioners need to understand who pays the bills, where the resources will come from and how we will pull together to build the kind of responses that you have talked about.
Obviously, issues such as SARS and others go well beyond policing to include the medical community. Provincial emergency measures organizations have accomplished a lot in that area. I can speak for Nova Scotia, and I know that in Ontario and other jurisdictions they have done a great deal of work in terms of mock emergency exercises. I think we are in better shape now than we were, but we have a long way to go yet.
Senator Joyal: Are you of the opinion that we would need the capacity to understand all of the ramifications and develop an approach that would be shared by all the levels of intervention that you have mentioned? Do you think that the current provisions are sufficient to meet the demands in the field on the basis of our experience?
Mr. MacLeod: There must be work on both levels. We cannot stay only at the strategic level but must work at the practical level as well. We have to take the time to think strategically across all levels of government and to look at the future. Federal, provincial, territorial and municipal governments must be in the room — 65 per cent of the police in this country are paid for by local governments.
You have to work on that level. In the meantime, we are doing our part at CACP by holding practical training sessions and by bringing police together to talk about interoperability. The law amendments committee represents police agencies from across the country at the federal, provincial and municipal levels. We are maxing ourselves out because, keep in mind, we are not a government agency. We are a non-profit organization that is trying to make things work. We are the only game in town in terms of an association that includes under its mandate federal, provincial and municipal police.
Here is my paid political announcement, that if you can get us some support we are furthering the cause. We are not about our members first. We are about public safety. Our association stands by that. That is a hallmark of our association.
The Chairman: I am sure your testimony will not go unnoticed, Mr. MacLeod.
Senator Day: Your comment with respect to emergency response and interoperability prompts a first question. It is a question of clarification because I know that there is a significant amount of federal government money available for emergency measures, fire departments and from a security first-response point of view. Is that federal government money also available for policing interoperability, the various levels of policing?
Mr. MacLeod: The interoperability has filtered down. For example, there is a major success story in British Columbia where the province took the lead, but it is supported by the RCMP and also by local police, and they are building a common records-management system and the communication tools. That would be one effort. You see all kinds of initiatives going on regionally.
Senator Day: Has federal government money been made available for policing interoperability?
Mr. MacLeod: I believe for the RCMP, but I do not know how that trickles down.
Mr. Ryder: It is difficult to answer specifically. You heard the Commissioner of the RCMP today. It was a powerful statement that he was here with our commissioner and Chief Bevan in regard to integrated policing. There are several joint forces operations. There are 19 that the OPP is currently involved with in the Province of Ontario; we lead seven of them. Of course, other police departments, including the RCMP, lead some others. Those units are put together under different funding arrangements, so there could be federal money, and there could be issues around common radio systems, et cetera, so the teams can be fully integrated. That is why it is difficult to say how much federal money may be involved in those joint forces. It is a quid pro quo, because there will be times when either another municipality or the provincial police would be providing resources such as vehicles, computers, pagers, to facilitate a joint force operation.
Senator Day: We have had a lot of discussion about integration from the security policing side of things. Can we still think in terms of silos from the point of view of terrorism and organized crime, or is there a lot of integration on that side of the equation as well?
Mr. Westwick: At a practical level the answer is yes, there is a huge amount of integration. The difficulty, and it is so frustrating for police, is that they still have to deal with an array of practical problems, for example, the National Capital Region here. It is hard to imagine anything of a major nature, whether it is organized crime or terrorism or public safety — I am thinking of the important visits, G20 meetings and so on — that is not conducted on an integrated basis. There is a standing arrangement for how that unfolds. Every time one of these events arises, you end up with a room full of lawyers poring over documents and agreements about liability, about authority.
For example, when the President of the United States was here in November, we asked for assistance from the Sûreté. At a police level they were anxious to agree. We had 250 members of the Sûreté bused in from Quebec, where they had been involved in another operation. They drove overnight to get here. They were anxious to help and in fact were needed, but we had difficulty getting them sworn in as police officers in the Province of Ontario. Not that there was any issue about it, simply the paperwork and logistics associated with getting that done. We still had eight members of their crowd management team who we could not be sworn in because they were the backup members and we did not have the names right.
You find yourself scratching your head when you are dealing with something like a presidential visit. As it turned out, everything went well, but in our business we worry about risks. To think we are were not able to get access to all the people we wanted because of issues like that. I know from the OPP standpoint it is the same thing. All kinds of peculiarities exist in the kind of country that we have, but from a policing standpoint, from an officer safety standpoint, from the liability standpoint, from a command and control standpoint, these are complicated issues to work out.
At an operational level, particularly in the National Capital Region, we have worked it out. It needs to be done on an ad hoc basis in every municipality across the country, and it is a huge job.
Senator Day: Let me conclude with this question and get back to the anti-terrorism legislation we are looking at. Under the legislation, there is a requirement to test for motivation, which is not a test that you would typically apply in a criminal-type investigation. We are talking now about whether we need to make some amendments. Have you had any discussions, or do you have any opinion, with respect to the requirement to find the element of a political, religious or ideological motivation for terrorist activity?
Mr. Westwick: I had the benefit of listening to this morning's discussion on that so I understand where the question is coming from.
From our standpoint, and we thought about it over the lunch hour, as we understand it, that phraseology was put into the act by the draftspersons to limit the scope of it. As Senator Andreychuk pointed out this morning, parliamentarians then added in a delimiter to the limiter in article (1.1) to focus it more. It strikes me from a police standpoint that we are content with the definition that focuses on terrorism. As Chief Bevan said this morning, there needs to be a specific definition. It appears as though the focusing attempt perhaps has not worked. It seems that it may be a draftsperson you need to talk to in order to get the proper opinion.
From our standpoint, my personal opinion, I do not think it is needed or adds anything. It imposes a higher standard from an investigative standpoint. When you begin the process of investigation leading to prosecution, you have a higher threshold of proof because you have to address one of those elements in order to trigger the responses.
I know my own limitations and I would defer to the draftspersons at the Department of Justice as to how to achieve that particular objective.
Senator Day: It requires you to focus on political or ideological motivation. That is not something you would typically do in a policing situation. That is my point.
Mr. Westwick: No.
Senator Lynch-Staunton: There is a question I wanted to ask the commissioner this morning but time ran out. I will ask him when he returns. I want to ask the three of you because you are on the front lines. It was suggested to us by a government witness that Bill C-36, while not being applied except on rare occasions, if at all, should be kept on the books because it acts as a deterrent. Now the gentleman from Ottawa today said it is more like an insurance policy. I accept that argument.
Do you agree that laws are deterrents, meaning that if there is a law on the books it will discourage people from violating it? It is, for all of you, a philosophical question. It is an argument that I find hard to accept but I am ready to be convinced.
Mr. Ryder: I would be in your camp. I know there are discussions about specific deterrents, general deterrents. When you talk about deterrents, I sometimes think the biggest is the fear of being caught as opposed to fear of any kind of punishment.
If we are talking about some of the terrorists acts that we have seen in the past, especially suicide bombers, there is certainly no fear of being caught or of any consequences, because in those situations they are willing to give up their lives.
Mr. MacLeod: That is a tough question. I will give you a personal answer. I do not want to get beaten up by my colleagues for answering on behalf of the association.
I think it has a limited effect. I do not really know how to measure that. I think more and more of our efforts need to be focused on motivation and why people do this. That is why we are so keen on these proactive strategies we talked about on diversity and so on. It is dealing with a longer range and the tough questions, not the band-aid solutions, but the motivations as to why people want to engage in such terrible criminal acts or terrorism.
Senator Lynch-Staunton: That ``why'' question was asked of the Director of CSIS. The answer was, it is usually a male between 25 and 35, whatever, but what is the motivation? What is it that sparks a person? Is it hate? Is it prejudice? Is it something that we may have done that leads that person to extreme actions? Has anyone looked into this? CSIS, with all the respect I have for it, did not seem to have the answer that I had hoped to get from them.
Mr. MacLeod: It is a very difficult question. Personally, I feel that if you create mechanisms that bring people together to talk, to communicate, chances are you will make a difference.
Senator Lynch-Staunton: Maybe to say you are sorry.
Mr. MacLeod: Just to talk about conditions, to create those situations.
Senator Lynch-Staunton: We are going beyond my immediate question, which is whether having a law is a deterrent.
Mr. Westwick: I have difficulty with the image of a potential terrorist picking up Bill C-36 and, after reading it, deciding that he or she will not act on the basis of what is in there. Pardon my flippancy.
What is incredibly important in the anti-terrorism legislation, and what we highlighted in our opening remarks — and focused on the one foundational principle that the Minister of Justice pointed out — is the preventive component, if you can distinguish between deterrent and prevention. What we found find so helpful about the Anti-terrorism Act is there are actions the police can take. There are some investigative options through the investigative hearing and the recognizance with conditions that allow police to do something before a disaster happens rather than simply investigating after it has occurred to try to find the right offence to apply against the perpetrators. Whether people are using ``deterrent'' and ``prevention'' interchangeably, I do not know, but I do not think they are interchangeable. They are different concepts, but I would certainly strongly endorse the principle of prevention, which is in the legislation, and which is all too often not seen in criminal or quasi-criminal law. Quite frankly, I think the Government of Canada got it right. I am not often quoted as saying that in this capacity, but I think the balance has been struck in an important way.
Senator Lynch-Staunton: Thank you.
The Chairman: Thank you all again. It has been a pleasure having you here. We wish you all the very best in your own efforts and your daily work to tackle one of our most challenging issues in this country. We are glad to see the spirit in which you are here and the confidence that you have that you will succeed.
Colleagues, we will gather again next Monday. Be prepared not just for morning and afternoon meetings, but we also have a video conference in the evening with a witness in Australia.
The committee adjourned.