Proceedings of the Special Senate Committee on the
Anti-terrorism Act
Issue 8 - Evidence - Afternoon meeting
OTTAWA, Monday, April 18, 2005
The Special Senate Committee on the Anti-terrorism Act met this day at 1 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 will call the meeting to order. This is the seventeenth 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 DC 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 of the legislation and we agreed, and the deadline for passage of that bill was mid-December of 2001.
However, concerns were expressed that it was difficult to thoroughly assess the potential impact of this legislation within 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 a less emotionally charged public. The work of this special committee represents the Senate's efforts to fulfil that obligation.
When we have completed the study, we will make a report to the Senate and outline any issue which we believe should be addressed, and will allow the results of our work to be made available to the Government of Canada and to the public. I should say that the House of Commons is undertaking a similar process at this time.
The committee so far has met with government ministers and officials, with international and domestic experts on the threat environment and with legal experts as well as those involved in enforcement and intelligence gathering. This afternoon we will be discussing the oversight of that intelligence gathering and policing.
From the Commission for Public Complaints Against the RCMP, we are joined by Chair Shirley Heafey, as well as Steve McDonell, who is Senior General Counsel. Also, from the Security and Intelligence Review Committee, we are joined by Executive Director Susan Pollak, and Sharon Hamilton, the Senior Research Advisor. They are joined by Tim Farr, the Associate Executive Director, and Marian McGrath, Senior Counsel, who will be assisting with answers to the questions.
As always, honourable senators, and as we found out this morning, these are interesting occasions and we would like to have the maximum time for questions and answers. I would urge you to be as concise as possible in your questions and in the answers so that all of our senators are able to receive the information that this committee needs.
Ms. Shirley Heafey, Chair, Commission for Public Complaints Against the RCMP: Good afternoon, senators, and Madam Chair, and I thank you for inviting me. As the chair said, this is an important topic.
I would like to start off by telling you about the experience I have that is relevant to the topic we are discussing today. I have been Chair of the Commission for Public Complaints Against the RCMP, which I will call the CPC, for almost eight years and a part-time member before that for two years. Prior to that, I was head of complaints and senior investigator at the Security Intelligence Review Committee, SIRC, for four years.
[Translation]
Police forces and security intelligence services have had a difficult time since the events of September 11. Oversight agencies, responsible for monitoring the conduct of those responsible for such activities, have had a difficult time. These agencies are often in the position of having to be critical of the very people who are working hard to keep us safe.
[English]
However, given the extraordinary powers provided to our police services and our national security services, it is vital to have effective oversight of their work in order to ensure that the civil liberties and human rights that we have acquired are preserved. As you know, the aim of the anti-terrorism legislation is preventive. That makes sense. There is no point in having legislation whose aim is to clean up after the damage is done. However, that is a double-edged sword.
For example, police can obtain a search warrant to search a home. They can rummage through it and never lay charges if nothing is found. That is all in the name of prevention. If no charges are laid, the person whose home was searched and who objects to such a search has no recourse but to come to the CPC. However, the RCMP has denied us access to this kind of relevant information, which in our view is contrary to the RCMP Act, because it requires the RCMP to furnish us with all information relevant to a complaint.
As a result, we are prevented from effectively reviewing any complaint where access to information is denied. There are at least two current files in our office involving national security activities of the RCMP where we have been provided with so little information that we cannot respond.
Obviously we have a difference of opinion with the RCMP on this point. We believe we have the mandate to do the work but just do not have the tools to carry out the mandate, to enforce the mandate, in fact.
In effect, unlike CSIS, our national police service has no effective civilian oversight, certainly not of national security activities given to it since the anti-terrorism legislation was enacted.
[Translation]
For example, the RCMP has the right to apply to a judge to obtain a search warrant, search a home, lay no charges possibly because no evidence of wrongdoing was found and, at present, there is no civilian authority that has the ability to examine the search warrant to verify the information. Courts rely on the sworn affidavit of a police officer. They do not have the time to verify the file information substantiating the application for warrant. In the case of CSIS, the Security Intelligence Review Committee and the Inspector General of the Canadian Security Intelligence Service do that job. In the case of the RCMP, no one does.
[English]
Further, CPC has no power to audit RCMP files. CPC can only act on the basis of a complaint. If no member of the public complains, we never find out about it. In the case of members of the Muslim population, since 9/11 there is too much fear of bringing unwanted attention to themselves or of police retaliation for them to come forward and make complaints about police conduct. Many people in Canada have not lived here their whole lives and are from countries where retaliation by the police does happen. They are not accustomed to thinking of the police as our protectors.
As chair of the CPC, I have the ability to make a complaint about RCMP conduct. However, I have to find out about the conduct before I can lodge such a complaint. Unless an incident is publicized and comes to my attention, for example, through the media, we will never find out about it.
[Translation]
I would like to take the opportunity to clarify some information provided by Commissioner Zaccardelli to Senator Fraser when he appeared before you last week.
[English]
In an exchange between Senator Fraser and Commissioner Zaccardelli last week, which can be found at page 1030- 20 of your proceedings from last week, it was suggested that Senator Fraser was wrong in believing that there had to be a specific complaint about a specific case before the CPC could act. Senator Fraser was not wrong. The police pursuits investigation mentioned by the commissioner arose out of a complaint by a member of the public.
I am not trying to show up the commissioner's memory on this case that took place a few years ago, but I was concerned that his response could inadvertently mislead you into believing that the CPC has, like SIRC, the power to audit RCMP activities. By ``audit'' I mean a review of selected files where no complaint has been made. For instance, we cannot ask to review 10 files during a given time period in which searches have been conducted. However, SIRC has that power to audit CSIS activities. I believe that the CPC needs that same ability to effectively review RCMP conduct.
[Translation]
When the CPC was established in 1988, the RCMP was not involved in national security activities and intelligence gathering in the manner in which it is now. CSIS had become a separate and independent entity, and it carried out those duties. The RCMP is back in that business since the events of September 11. As a result of the RCMP's new powers, the CPC also needs to be given the authority to review such activities.
[English]
Finally, the RCMP did not ask for these additional powers after 9/11, but it got them nonetheless. We believe that with increased powers should come increased accountability. I agree with Senator Fraser's suggestion last week in her question to Commissioner Zaccardelli that effective civilian review of the RCMP does depend on the ability of the CPC to initiate reviews on its own, without a complaint.
Ms. Susan Pollak, Executive Director, Security Intelligence Review Committee: Good afternoon. I would like to begin by extending greetings from the chair of the committee and the other committee members who could not be here with us today. As SIRC's Executive Director, I will be speaking on their behalf. It is a great privilege to be here to address you. I sincerely hope that my comments will assist in your review of the Anti-terrorism Act.
I would like to discuss three matters. First, I will provide you with a very brief description of what SIRC does. Second, I will discuss SIRC's first review of a CSIS activity arising directly out of the Anti-terrorism Act, specifically, their role in the terrorist entity-listing process. Finally, I would like to raise some questions with respect to the Security of Information Act as amended by the Anti-terrorism Act regarding SIRC's role in the public interest defence when a person who is permanently bound to secrecy discloses classified information.
SIRC is an external review body independent of government. It was established to provide assurance to Parliament that CSIS is complying with the law in the performance of its duties. In doing so, the committee ensures that CSIS does not undermine the fundamental rights and freedoms of Canadians while it carries out its mandate to guard against threats to national security.
SIRC is the only independent external body with the legal mandate and expertise to review CSIS activities. By ``independent'' and ``external'' I mean that SIRC is at arm's-length from the government and does not report to any minister but, rather, directly to Parliament.
SIRC's current membership includes the chair, the Honourable Madame Paule Gauthier; the Honourable Gary Filmon; the Honourable Roy Romanow; the Honourable Baljit Chadha; and the Honourable Raymond Speaker.
SIRC has two principal responsibilities; to conduct reviews of CSIS activities and to investigate complaints. We review CSIS activities against four instruments that together form the legislative and policy framework of the service. These are the CSIS Act, ministerial direction, national requirements for security intelligence and CSIS operational policies.
SIRC has the absolute authority to examine all of the service's activities, no matter how sensitive and how highly classified that information may be, with the exception of cabinet confidences. I want to stress that the committee examines the service's performance on a retrospective basis only, that is to say, we examine the past activities of the service. Our work is not intended to provide oversight of current CSIS activities.
SIRC also conducts investigations in relation to complaints about CSIS activities, complaints about the denial or revocation of security clearances, ministers' reports in respect of the Citizenship Act and, finally, complaints made under the Canadian Human Rights Act that are referred to SIRC for national security reasons. The committee issues reports and makes recommendations to the director and to the minister and also reports its findings to the complainant.
It is easy to obtain more information about SIRC by visiting our website. I have brought along copies of our most recent annual report to Parliament as well as a small publication called ``Reflections'' that recounts SIRC's 20-year history and describes some of the challenges we face today.
With regard to the role of CSIS in the terrorist entity listing process, when SIRC first appeared before the special Senate committee studying Bill C-36 in October of 2001, we did not anticipate any significant qualitative changes to our work or to that of CSIS as a result of the bill's impending passage. After all, CSIS did not receive any new powers and its mandate under the CSIS Act, as well as SIRC's, was unchanged. SIRC assumed that the Anti-terrorism Act would not greatly affect the service's operations because only a single section of the CSIS Act was amended by the Anti-terrorism Act. That change was to the definition of ``threats to the security of Canada,'' which was amended to include the words ``religious or ideological'' in section 2 so that the section now reads:
(c) activities within or relating to Canada directed toward or in support of the threat or use of acts of serious violence against persons or property for the purpose of achieving a political, religious or ideological objective within Canada or a foreign state, and
That is section 89 of the Anti-terrorism Act.
SIRC did, however, at that time predict that the bill's passage would result in an increase in the number of complaints we received based on our presumption that many groups or individuals placed on the terrorist entity list established under the Criminal Code would file complaints with SIRC under section 41 of the CSIS Act.
Three years later, that has not proven to be the case. Almost all of the listed entities are foreign based and are, therefore, unlikely to complain to SIRC. In fact, to date we have not received any complaints in relation to the entity- listing process. This situation could change, however, if Canadian citizens or groups with a strong Canadian presence were to be listed in the future.
I would now like to discuss some of the committee's concerns arising from our first review of the service's participation in the terrorist entity-listing process, which I will at times refer to as the TEL process.
SIRC identified three issues. The first relates to the authorities under which CSIS collects information for the purposes of the listing process and the extent of their collection activity, and the other two relate to SIRC's ability to review the listing process.
The first area is CSIS's authority for engaging in the listing process. The TEL process is mandated under section 83.05 of the Criminal Code, as amended by the Anti-terrorism Act. CSIS plays a role in the TEL process by creating the security intelligence reports, or SIRs, considered by the Minister of Public Safety and Emergency Preparedness in making her recommendation to the Governor-in-Council concerning whether or not an entity should be listed. When we examined the service's role in the TEL process, SIRC asked itself: (1) What is the service's authority to participate in the listing process; (2) What is the meaning of threats to the security of Canada as defined in section 2 of the CSIS Act; and (3) Is the definition of threats to the security of Canada in the CSIS Act consistent with the definition of terrorist activity in the Criminal Code?
These questions are not hypothetical. There are several entities on the Criminal Code list, which currently includes 35 groups, as you know, that do not appear to fall within the definition of threats to the security of Canada under the CSIS Act.
Let me give you two examples.
The Japanese cult, Aum Shinrikyo, is a listed entity. While I cannot discuss the details of CSIS investigations, I can say that this organization has not committed any terrorist acts on Canadian soil and does not have any obvious presence or support apparatus in Canada. The question for SIRC is whether such an organization falls within the definition of threats to the security of Canada in the CSIS Act.
Similarly, the listed Colombian group known as Las Autodefensas Unidas de Colombia, or AUC, clearly commits terrorist activity in Colombia. No one disputes this fact. Does the AUC, which primarily targets Colombian peasants, represent a threat to the security of Canada?
Section 2 of the CSIS Act is very specific, owing to the importance that Parliament placed on clear legislative boundaries to the service's collection activities. The CSIS Act defines threats to the security of Canada as activities against Canada or detrimental to the interests of Canada in section 2(a); activities within or relating to Canada, sections 2(b) and 2(c); or activities directed toward undermining the established system of government in Canada, section 2(d). Canada and Canadian interests are the common denominators in all four definitions of threats to the security of Canada.
In contrast, section 83.01 of the Criminal Code defines terrorist activity as an act or omission corresponding to the listed offences that is committed in or outside Canada. While the CSIS Act specifies a particular relationship to Canada, the Criminal Code definition for terrorist activity may or may not relate to Canada because it includes activities that may take place outside Canada and that need not specifically relate to Canada.
The bottom line is that it is not necessary for the terrorist activity to have a clear relationship to Canada or to Canadian interests in order for it to meet the definition of terrorist activity in the Criminal Code.
As the Department of Justice has noted, the Anti-terrorism Act was designed to harmonize Canadian legislation with that of our international partners, but as a result of our review, SIRC noted that this international dimension of the listing process is not accounted for in the CSIS Act, which was designed to limit the service's collection activity to national concerns.
To put it another way, what this means from SIRC's perspective is that the listing process may require CSIS to collect, retain and analyze information that does not fall within the definition of threats to the security of Canada in the CSIS Act.
When we were talking about this at the office, I found that the easiest way to consider it was to think of two concentric circles. The inner, smaller circle represents the service's activity as authorized under section 12, which is limited to threats to the security of Canada, and the outer, somewhat larger circle represents the service's collection, analysis, retention and advice concerning information and intelligence on terrorist activity for the entity-listing process that is mandated under the Criminal Code.
Much of the information in the two circles coincides and falls within the service's mandate under the CSIS Act, but some does not. What do we do when the circles do not fully coincide? Is that an indication of inconsistency between the two definitions? Is there a reason for concern? As a result of SIRC's review, the committee concluded that there is an area where the two circles do not coincide.
SIRC recognizes that the service has the statutory authority to collect information and intelligence for the entity- listing process pursuant to ministerial direction to the service under section 6(2) of the CSIS Act. I should note, however, that for the first year of the entity-listing process, CSIS performed its new duties without formal ministerial direction and, of course, ministerial direction to the service cannot expand its mandate but only provide authority to CSIS to act within the limitations that are already established by the CSIS Act itself.
Before continuing, I do want to be clear. SIRC does not fault CSIS for this situation because this is not an issue of CSIS's making. These are matters of legislative authority over which the service does not have any control.
Overall, in our review of the service's role in the listing process, we found that their collection of information was undertaken in accordance with ministerial direction once this direction had been provided and according to relevant operational policies. Nevertheless, we concluded that the process required the service to collect some information that does not fall under the authorities set out in the CSIS Act in regard to threats to the security of Canada.
As a review body, the committee believes that any extension of CSIS's collection activity warrants particular attention. After all, Parliament intended that the service's collection activity would be precisely defined, owing to the extraordinary powers that are exercised by the service. The committee would simply like to note that this narrow extension of CSIS's collection activity and the lack of clear authority pertaining to that activity is of some concern. They would like to see the issue addressed as part of your review.
This brings me to the second subject related to the listing process, which is SIRC's own ability to review CSIS's role. The special Senate committee that originally examined Bill C-36 expressed concerns that the TEL process lacked adequate provisions for independent review. Senators were especially concerned at CSIS's involvement in the two-year review of the list, noting that, in effect, the list would be reviewed by the same people who had created it. As a result, senators recommended that an officer of Parliament position be created to review the listing process or, alternatively, that SIRC be responsible for its regular review. At that time, Minister McLellan, who was then Minister of Justice and Attorney General of Canada, argued that existing review mechanisms were sufficient. She stated before the special Senate committee that:
...we have ongoing oversight mechanisms that have proved effective, be that SIRC, be that the courts. Therefore, I would be disinclined to think about the creation of a new oversight mechanism that is separate and apart from those that exist...
We know that senators raised this concern again with Minister McLellan during her recent appearance before this special committee. We also noted that Minister McLellan again cited SIRC as one of the most important safeguards and accountability mechanisms with respect to provisions in the Anti-terrorism Act. Since Minister McLellan specifically cited SIRC's ability to review the list as an important safeguard, it is important to signal that although SIRC can perform a fairly comprehensive review of the service's role in the listing process, we are unable to perform a complete review.
Succinctly put, SIRC cannot see the actual security intelligence reports, or SIRs, the reports I mentioned earlier, upon which the Governor-in-Council decisions are based, owing to cabinet confidentiality.
We accept that subsection 39(3) of the Canadian Security Intelligence Service Act prevents SIRC from gaining access to a cabinet confidence, and we also recognize other checks and balances are built into the listing process. Nonetheless, the committee considers it important that you be aware of this constraint on our conducting a comprehensive review of the role of CSIS in the listing process.
I should note also that in the past, on the few occasions when SIRC has encountered an issue of cabinet confidence, we have reached an agreement with past Solicitors General to satisfy those concerns. I wish to note the chair has raised this concern directly with Minister McLellan, and we are awaiting a response from her.
An additional but lesser concern is that another agency, such as the RCMP, could prepare a SIR. In paragraph 83.05(6)(a) of the Criminal Code on judicial review of the listing process, the code refers to ``any security or criminal intelligence reports considered in listing the applicant.'' However, it does not specify which Canadian department or agency might prepare those reports. The inclusion of the word ``criminal'' here suggests that the RCMP could play a role in this process, and this has been confirmed to us by CSIS.
In the event that the RCMP were to prepare a SIR for consideration in the Governor-in-Council listing process, SIRC would have no jurisdiction whatsoever to review it, since our mandate is restricted, as you know, to CSIS.
I move now to my final subject, which is SIRC and the Security of Information Act.
The Official Secrets Act was repealed by the Anti-terrorism Act and replaced by the Security of Information Act. That act has created a new responsibility for SIRC. Specifically, section 15 provides for a public interest defence where an individual permanently bound to secrecy discloses special operational information as defined by the act.
Such a defence would only be available when the individual had first brought the information to the deputy head or the Deputy Attorney General of Canada and, in the absence of a response from those individuals, to SIRC.
We have several questions in relation to these provisions, specifically, what was Parliament's intention when it created a role for SIRC? Although this provision allows for SIRC to receive special operational information, SIRC's role upon receipt of said information is left undefined. If Parliament intended that the committee would conduct an investigation relating to the special operational information, what would the committee's statutory powers be? Would the committee make findings and recommendations?
The committee's responsibility to report on such an investigation, and to whom, also needs to be specified. These issues remain unclear to SIRC, and no clear link has been made to our existing mandate under the CSIS Act.
Considering the potentially serious repercussions for government employees were they to disclose such information, the committee would welcome more clarity in this matter.
In conclusion, I would like to thank the members of the Senate for giving SIRC an opportunity to comment on some of the issues that we have seen relating to the Anti-terrorism Act. I hope that my remarks will assist you in your review and look forward to answering any questions that you may have.
The Chairman: Thank you both; and we will get right into it.
Senator Austin: I just wanted to explore a specific area. You have said that you are entitled to full access to all information relating to an investigation into the activities of CSIS. Then you have said that you are limited to CSIS alone. Where CSIS and the RCMP have interacted, and either of you is seized of the matter, how far can you cooperate? How far can you move, particularly with respect to SIRC, which is entitled to full access? How full is ``full access''? Can you trace the matter through? Can you require the RCMP to divulge information regarding joint operations or exchange of information with CSIS?
Ms. Pollak: Senator, we have full access to all information in the control of the service. That means that with respect to any information related to joint activities, joint operations or sharing arrangements, activities where they have exchanged information, we do have access to anything that the RCMP has provided or any details related to joint activities. We cannot follow things over the wall, so to speak, and require that the RCMP provide us with information from their own files, databases or records.
Therefore, if it is under the control of CSIS by virtue of their activities, then yes, we have access to it. Other than that, no, we do not.
Senator Austin: If the RCMP has transferred documents to CSIS, you have access to those documents?
Ms. Pollak: Yes, we do.
Senator Austin: Have you taken a look at the proposed new review agency, the national security review commission, and its relationship to your functions and activities?
Ms. Pollak: Is that the parliamentary committee?
Senator Austin: Yes. We have made a report to the Deputy Prime Minister and she has it under review. Have you seen the report?
Ms. Heafey: I have seen it, yes. We made the very same recommendation in our proposal to the Arar commission. I think it is a very good idea. It is necessary for parliamentarians to be involved in this area. Parliament should be involved in anything that touches Canadians across the board.
Senator Austin: You could, in fact, make submissions to the review commission, and it could make its recommendations to the government. That would be the limit of the authority of the commission, as I understand it. However, at least you could have a full disclosure of the limitations of your mandate and perhaps recruit parliamentarians to a new view of how your mandate should be described.
Ms. Pollak: The committee's view is that we would like to see our own mandate clearly preserved in whatever legislation is drafted to guide the deliberations and the mandate of the new committee. We accept this will happen, and we anticipate that we would be working cooperatively, but we would be very interested in seeing our own mandate carved out and kept as it is. We think that over 20 years, the committee has been very effective in learning and speaking about CSIS and, we hope, informing the Canadian population about the activities of this rather secret organization.
I am not sure I would be quite in the same corner as my colleague, but the committee does anticipate having a cooperative relationship with the new body.
Senator Austin: I would like to observe that the parliamentary review committee will need an operational staff, and therefore a third player will be in the constellation of review processes. We will have a lot of reviewing.
Ms. Heafey: There should not be a duplication of the work, however. Parliament should be looking at the big questions that touch all Canadians. We do the RCMP, they do CSIS, but Parliament has a role. It could be doing something along the lines of the Arar commission.
Senator Austin: I take your point.
I wonder whether such a committee would depoliticize those issues when they emerge. This is a rhetorical question. I know neither of you can respond to this, but I do wonder whether it takes it in some other direction.
Senator Stratton: My first question is addressed to Shirley Heafey. You have concerns about access to relevant information from the RCMP. What attempts are you making to overcome this problem? When I listen to the Security and Intelligence Review Committee report, it seems to me you would love to have that kind of arrangement.
Ms. Heafey: I would, senator. When I was at SIRC in its first four years, I would simply ask for the material and get it. It was not complicated. Unfortunately, the way things are with this commission of which I am chair, it is a continuous struggle. We are actually in court right now trying to get information so that we can respond to a file. Somebody complained about having their home or barn searched, and we cannot give an answer, so we have gone to court to try to get an answer.
Senator Stratton: Why do you suppose that the Security Intelligence Review Committee has this power and the Commission for Public Complaints Against the RCMP does not? It would seem that the two would go together. It would seem that the government should be looking at putting you on an equal footing so that you have the same kind of powers. Why do you suppose that is not happening?
Ms. Heafey: Perhaps I could start off with historical reasons. CSIS came into existence at the same time as SIRC, so they had to learn to live together right off the bat. CSIS was doing these very secret activities. The RCMP was not at the time, so I do not think it was contemplated that it would be necessary to oversee anything like that. Now they are doing it. They have been doing it since 9/11. The RCMP is involved in intelligence collection and there is no civilian oversight of that entire area.
The RCMP has been around for a long time. I believe it is over 130 years now. They are a Canadian icon, and it is a little harder when you are dealing with that kind of organization. It is recognized throughout the world as an elite police service, and it is; but that does not mean it should be immune from civilian oversight.
Senator Stratton: In our review of the Anti-terrorism Act, that would be your recommendation, that you should be put on an equal footing with SIRC?
Ms. Heafey: Yes.
Senator Stratton: To go to Susan Pollak, you stated that you have concerns; could you give us the status of how those concerns are being addressed? Just repeat briefly for the sake of the people listening what those concerns are, how and if they are being addressed and when you expect an answer back from the government.
Ms. Pollak: Briefly, the chief concerns relate to the entity-listing process. There currently is not a clear and complete coincidence between the definitions of threats to the security of Canada and terrorist activity in the Criminal Code. We have one definition that guides CSIS's activities under the CSIS Act, which is their governing legislation.
Then we have the Criminal Code, which does not make any cross-reference specifically to the CSIS Act, but it does give CSIS a role in the entity-listing process, and there are now entities on that list that I think you would be hard put to argue pose a threat to the security of Canada. That is the first concern. The committee has raised this in the form of two letters to the Minister of Public Safety and Emergency Preparedness. We also had a working lunch in February, and she did undertake to get back to us on this and on the second matter.
The second matter relates to the limitation in our review of the security intelligence reports. Because they are cabinet confidences and presented by the Governor-in-Council, we cannot see those final documents. I do not wish to suggest that I think the contents of those documents are surprisingly different from all of the information we have already had access to on the groups that ended up being listed. We do have complete access to all of the facts, investigations and files that the service has, so I do not wish to leave you with the impression that I believe that they have substantially altered that information and presented something different to the Governor-in-Council. However, we cannot tell you here that we have seen it all, have looked at those reports and are okay with the whole process right to the last point. Those are our concerns. We have raised both of them with the government. I am led to believe that an answer is forthcoming, but we still have not received it.
Senator Stratton: There are concerns on the part of each organization that we should express in our report, and we should do a follow-up in the near future with respect to each because I think it is important that that take place.
Senator Jaffer: I would like to start with Ms. Heafey. Thank you for your refreshing testimony. You are the first witness that I can remember who has acknowledged the challenge for the Muslim communities in reporting complaints about the police or CSIS.
I have travelled to almost every major city in our country, and when I ask, ``Why do you not go to SIRC or to the Commission for Public Complaints Against the RCMP,'' they say, ``The last thing the police or CSIS told us is, ``We can come back here.'' It is not that in their countries of origin they found that the police were authoritarian, but it is in our country that they are finding police and CSIS are warning them — especially CSIS — that if you report us, we will be back.
If you have not received complaints, it is not because there are no complaints to make. It is because people are worried about what can happen next. People who have citizenship issues, other issues, are worried as to what will happen to them next.
I have so many questions, and I know our time is limited, so I am hoping that you will come again separately. I will start with you, Ms. Heafey, and I will say I was intrigued when you said there should be a national security review commission modeled on the Arar commission. Such a committee would provide an oversight mechanism for all federal officials involved in national security, and it would be empowered to review, and make findings and recommendations about, the activities of any official engaged in national security.
Can you please tell our committee here more of your thinking on this idea of oversight?
Ms. Heafey: Mostly, my thinking is a result of what happened with the appointment of the Arar commission. There are a lot of agencies now involved in national security areas. Ours looks at the RCMP. SIRC looks at CSIS, but there are a lot of others, including Foreign Affairs, the Canada Border Services Agency and Citizenship and Immigration. If all of these organizations are involved in an activity like the deportation of Maher Arar, how do you review it?
I am limited to looking at the RCMP. The activities of the others are ignored.
As a result of what is happening in our society now, in my view there will be more of these activities, from what I know, from what I have learned from people I speak to whom I meet across the country. I travel throughout this country. There will be more of this kind of thing.
The Arar commission had to come together not knowing the area at all. The area of national security is not simple to master. It is not something you can walk into and figure out what is going on. That is what they have had to do. They have had lawyers from all over the country working on this. They will gain that knowledge. If something like this comes up again, do we start from scratch and spend millions of dollars?
My vision was of a small body, like the national security review commission, that could take this on whenever there is an issue that touches on a number of agencies. With our cooperation, they could handle it. They could look at what is happening in the agencies involved in an incident. They would acquire experience over time and with our cooperation. No duplication need take place. That is how I saw this body doing the nitty-gritty of what the Arar commission is doing now.
Senator Jaffer: In regard to complaints, has anyone complained to you about the Air India incident? Will you be doing any review of what happened with the Air India incident?
Ms. Heafey: We have not received any complaints about Air India. That does not mean that we will not, but sometimes it takes a while. Complaints come in slowly. I hate to say this, but a very interesting problem exists in this area today. I do not know how we could do something. We have 40 people in our agency. As much as it might be helpful for an agency to look at the RCMP's role, it would require more resources.
Senator Jaffer: When the Deputy Prime Minister was here, she said that was the worst terrorist attack our country has experienced. Unfortunately, the reviews have been so superficial. Perhaps we should encourage the families to come before you.
What outreach work do you do to make the ethnic communities aware of your commission?
Ms. Heafey: In the last few years, particularly since 9/11, I have tried to go out and speak. I travel across the country. I spoke at a mosque two years ago. I was invited, and there were over 500 people. That was my first experience of a gathering where the entire population was Muslim. They swarmed me at the end of the formal discussion, telling me all kinds of stories, but not one of them made a complaint. I had an investigator with me in case someone wanted to do that.
I have kept in touch with the Islamic associations. I call them and write to them. I offer to go and speak to them. I do that also with the native community, although it is not directly related to terrorism. Natives do not complain; they put up with things.
The Muslim and the native populations are two groups that I have made efforts to speak to, to meet with, to go to the meetings of their associations.
[Translation]
Senator Joyal: Ms. Heafey, I wonder if I have understood your presentation correctly.
[English]
If I apply the same test to the RCMP that SIRC applies to CSIS, I would have to conclude that the RCMP is not under any monitoring of its activities; is that correct?
Ms. Heafey: You heard well.
Senator Joyal: At the beginning, I was reluctant to hear from both of you at the same time. We have many questions to address to both of you and we feel constrained by the time. However, in retrospect, I feel that it was a good idea to have both of you at the same time because then we can see the domain that is covered by one and seems to be more effective in the case of SIRC than in the case of the RCMP. If I understand your comment, there is no oversight of RCMP regular activities; it is only when members of the public decide to take their case into their own hands and move forward, with all the risk that they might think they will incur, that there is an investigation; is that correct?
Ms. Heafey: That is right. That is in the national security area.
Senator Joyal: We are dealing here with the national security area.
On the other hand, if I may quote an article that was published in The Globe and Mail on March 2, page A4, by Jeff Sallot, from Ottawa. I quote the first paragraph, and it deals with a statement you made, Ms. Heafey:
The head of the RCMP public complaints commission says the national police service often ignores her, refuses to give her the information she needs to do her job, and in one case dragged out an internal investigation for three years to try to conceal improper conduct by an officer.
After reading that article, I had the impression that you were being boycotted, that you were seen as an external agent and are not part of the system. In other words, the RCMP has an intrinsic attitude that it does not want anyone to be involved in its affairs. Would you care to comment, or do I have the wrong impression from reading that article?
Ms. Heafey: As a result of my experience with SIRC and with the CPC, I find it very difficult, because I never had those problems with SIRC. I did not have to spend days, weeks and months trying to get information. I simply asked for it and they would get it together for me.
With the RCMP, we have to be relentless in order to get the job done. It takes much more energy to do the job of overseeing the RCMP. It is much more difficult to do it with the RCMP than it was for CSIS.
We ask for material, we will get a little, and then we realize in the material there is a reference to something else that we need. We have to ask for that. We receive information on a piecemeal basis. That makes it difficult and it takes a significant amount of time and resources to get the job done. Not every file is like that, but many are.
Senator Joyal: Is that the reason for the letter that you sent to me, and I am sure you sent it to other senators, dated February 28, 2005? The letter is not marked ``confidential,'' so may I feel free to quote it?
Ms. Heafey: Yes, you may.
Senator Joyal: The letter states that:
[Translation]
The Commission for Public Complaints Against the RCMP has developed two proposals that I want to share with you. These proposals were submitted to the Arar commission on February 21, 2005. The document presents two proposals for an effective review mechanism of the national security activities of the RCMP.
[English]
In other words, you refer to two proposals that you sent to the Arar commission in regard to national security, especially that you should be invested with the same power that SIRC has with regard to CSIS, which is the power to look into the daily operation of the RCMP in relation to national security.
[Translation]
If I understand correctly, you want to compel testimony and require the production of documents; to summon people and administer oaths during a review or investigation; and to receive evidence whether or not admissible in court?
[English]
Those are the powers you are looking for.
Ms. Heafey: That is right, senator.
Senator Joyal: Would that imply that we should amend paragraph 45.41(2)(b) of the RCMP Act, whereby it is the commissioner who decides whether or not to give you documents? He has the final authority.
Ms. Heafey: Right now, he is the authority. He decides. I do not think that the RCMP should be deciding what we can see. If we are the oversight or the review body, we should decide whether we need to see this information. It has happened that we have been told, ``You do not need to see that. It is not relevant.'' How can I respond to a complainant if I do not see everything that I think is relevant? If I ask for documentation and do not get it, then there is a gap in the information. I do not feel good about then assuring a complainant, ``Yes, I have seen everything, and this is the answer I have for you.'' Right now, the RCMP decides, and sometimes they decide not to give it to us.
Senator Joyal: In other words, you would like to see that section of the act amended so that there is a capacity for you to decide which documents you are entitled to look at and analyze.
Ms. Heafey: Yes.
Senator Joyal: How do you explain that systemic attitude of the RCMP in relation to your position or your status as a commissioner?
Ms. Heafey: I go back to what I said a while ago. They have existed for over 130 years. They have not had oversight. This review body has existed for 16 years now. They still have not accepted that. I am not sure why, except for the fact that we were not born together, the CPC and the RCMP. There are people within the RCMP who do accept it. There are pockets in the RCMP who think it is a good thing. However, overall, generally, there is a resistance.
I am not sure what to tell you about why it happens. It is an organization that is very much closed in on itself. I refer to them in my submissions as an organization where people rely on each other, so they have built this climate where people who do not do the work they do are outsiders. We are outsiders. We are civilians. It is not well accepted, and has not been from the beginning. There have been problems all the way through.
Senator Joyal: Did your predecessors in that position encountered a similar difficulty in trying to get what I would not call spontaneous cooperation, but normal cooperation in the exercise of the mandate?
Ms. Heafey: There have been serious difficulties from the beginning. There has been resistance since it started in 1988.
Senator Joyal: The commissioner, as you know, testified here last week. I think you had an opportunity to go through the minutes of the committee. Senator Fraser asked him a question. I was in attendance so I heard the answer. I was surprised by the answer, because I was under the impression that you could act only on the basis of a formal complaint, not an anonymous complaint, but one signed by the person. Am I right that the complaint must be signed by the person?
Ms. Heafey: The complaint can be anonymous, but that presents problems. If a third party complains about something that happened and their testimony is not required, then we can look into it. However, a person can be directly involved and tell us about something but not want to be identified. That happens a lot. Some people will say, ``This happened to me, but please do not give my name, because if you do, I will deny it. I do not want to be involved because I am afraid.'' The complaints-based system is not adequate in the kind of society in which we live. Too many people are afraid to complain.
Senator Joyal: You feel that the system is only half effective, if I can use that expression, because it is based on the capacity of a person to be confronted with the system incarnated by the RCMP.
Ms. Heafey: Yes.
Senator Joyal: What is the alternative that you propose to obviate the systemic weaknesses of the system?
Ms. Heafey: The legislation must be amended. The RCMP Act should be amended to make it clear that the RCMP must turn over all the material, and perhaps it should include, for example, all information related to national security. Perhaps it should include a list. I am not a legislative drafter, but the legislation needs to be much clearer about what we have a right to do and the information that we should have. I think it is clear now, but we do not have the power to enforce it.
If we were able to audit, like SIRC can, we could say, ``We would like to look at all our search warrants for this period of time,'' and we would then go through all of the material. Let us say there were 10 searches. We look at all the material and give them a clean bill of health, or not, depending. We should be able to do these kinds of spot checks, which we call audits. We cannot right now. We have to rely on complaints, and that is where the weakness is.
Senator Joyal: Did the Auditor General not in fact take up your case in one sense in her report and recommend spending more on this so that we can try to understand the way that the overall system functions?
Ms. Heafey: Yes, she did. She mentioned that there was an imbalance between the powers that the RCMP have and the powers that we have. We do not have enough. Some agencies have a lot. CSIS has SIRC and the Inspector General. The RCMP has us. We can do some things, but there are many we cannot do. She did go through that in her report last year.
Senator Joyal: Is there something in your status that would make the RCMP suspicious, perhaps because you would not have security clearance and they could not trust the confidentiality of your office?
Ms. Heafey: No. I have a top secret clearance. All the staff have top secret clearances. We have premises whose security has been approved by the RCMP. That is not valid.
Senator Joyal: I am not asking the question because I do not know, but because there are people listening to us. There are people who will want to know why you are in that position. It is important that you establish your trustworthiness, your credibility and the capacity for the system to believe that you are in a position to assume the important protective work that you are charged with on behalf of the public. It is important that that be well known.
Ms. Heafey: Yes, I agree.
Senator Joyal: Is your staff sufficient in terms of the job you have to do, or are you understaffed?
Ms. Heafey: We are understaffed, but I suppose everybody would say that.
There are approximately 22,000 members of the RCMP across the country, and there are 40 of us. SIRC has 20 staff, but they have half of that number to oversee.
Senator Joyal: In other words, if we were to consider amending the RCMP legislation to provide you with the responsibility to oversee their national security activities, then we would have to take into account the fact that your budget would have to be proportionate to or in accordance with that responsibility.
Ms. Heafey: Yes. I would also like to add that if we had the audit power, it might be much easier than what we have presently. We have public interest investigations, which are important, but we also have the power to hold hearings. The legislation is so inefficient that the only time we can use our subpoena power is when I call a hearing. I do not want to call a hearing every time a complaint comes through because that is very expensive, as some of you will recall from the APEC inquiry. It can get out of control very easily. I do not like to have to use the power to hold a hearing to be able to issue a subpoena.
If we could audit, we would not have that problem. We could go in and say that we want to look at all of this activity during this period of time, and deal with the organization, with the RCMP. I would prefer that to calling a hearing every time something big happens.
Senator Joyal: Did you make that recommendation specifically?
Ms. Heafey: Yes, we made a list of changes that we felt needed to be made for greater efficiency. It is possible that the budget would not be as high as we might think, because hearings need to take place in the province where the incident occurred, there are lawyers involved and it is never-ending planning.
Senator Joyal: Could we get that list of subjects that you mentioned so that it could be acknowledged by the members of this committee?
Ms. Heafey: Yes.
Senator Andreychuk: I would like to change the topic just slightly. Ms. Heafey, you have registered your difficulties in your position before. I want to ask both Ms. Pollak and Ms. Heafey about the fact that we are now told constantly by the government that we are in a different environment since 9/11, that terrorism is here to stay and that the government must be fully armed with all of these tools they talk about.
In the case of CSIS, from your perspective in SIRC, do you believe that CSIS officers and officials are armed with sufficient tools to do their job vis-à-vis terrorism? I appreciate, Ms. Heafey, that you have a limited ability to do the assessments; do you believe that the RCMP has sufficient tools to investigate terrorism activity in Canada?
Ms. Pollak: This is a difficult question for me to answer because I do not work inside the agency day to day. I am not a CSIS operator, but I think they have the legislated tools they need, that the powers they have been given remain effective. I do not think they or we would say that those need to be substantially changed.
Where there may be some need for the service to gain some new tools of the trade would be in terms of the kinds of technologies that are developing, which are obviously as equally available to the bad guys as they are to the good guys. Therefore, there are a lot of encryption devices, there is Internet-based communication, there is steganography; there are all kinds of techniques that I as a Luddite really could not go into in any great detail, but I know these are in the hands of people who are trying to avoid detection and plan bad things. We need to be mindful of the extent to which our laws may prevent the service from keeping pace with those kinds of advances, so that they at least are able to keep up with the people they are supposed to be keeping an eye on.
That would be my comment. The world is changing much more quickly than we may realize, because it is global activity now. We do not have the geographic restrictions on terrorist activities that were the norm only 20 years ago when the service was first established. People can communicate around the world at any time of the day or night. They do not have to worry about whether the person on the other end is even awake.
These are all matters that need to be kept in mind when you are dealing with the global terrorist threat that is definitely real.
Ms. Heafey: I do not have anything to add to that.
Senator Andreychuk: With respect to CSIS, we know that in the United States, it was not the lack of legislative capacity or tools that led to 9/11. There were facts known. If I understand the 9/11 commission findings, it was lack of the capability to paint the big picture and know what was happening with the terrorists. That is very much a function of analysis as opposed to gathering of information. Analysis is the key to success.
In what way has CSIS changed its hiring practices, its analytical practices, in all of the areas that make for better analysis of information? Have you discerned any changes since 9/11 or are we still operating as we did before?
Ms. Pollak: This is a question that might be better put to somebody from the service. I do know that they are very mindful of the need to recruit people from many communities so that they have the linguistic and cultural knowledge to work in the environment that has evolved over the last 20 years.
The threat in 1984 came primarily from the Soviet Union. Where is the Soviet Union today? There are still threats from those corners of the world, but many of them are different. Some are indeed still the same, but I will not go into details. We all know that things have changed. Today the service places most of its resources in the area of counterterrorism — and the origins of terrorism evolve. They are very mindful of that and have made efforts to recruit people who have the skills they require.
How dramatically it has changed in three years, I really could not tell you.
Senator Andreychuk: Am I to infer from that that SIRC itself has not done any sort of analysis or reflection in its broad mandate to determine whether the CSIS of old is still the best possible utilization of an intelligence service? In other words, I saw the oversight role of SIRC as including emerging issues and reflecting on some of the changes in intelligence work. Has anything been done in SIRC to look at the new?
Ms. Pollak: Most definitely. Let me explain. First of all, our role is to review. It is not oversight. I do like to be clear on the distinction between the two terms. We do not look at what the service is deciding to investigate today. We look backwards after an investigation has gone a certain distance, and we decide whether it has been completed.
Senator Andreychuk: The committee knows that it is only a review body. However, in your review, there are lessons learned. Is that not what we always say?
Ms. Pollak: Yes, I was planning to move to that point. We definitely are looking at what kinds of investigations they are undertaking and, in a very broad sense, where the resources are being placed.
We do not have any means of examining their recruitment practices. Issues of pure management and control of the service fall only within the purview of the director. SIRC has no capacity to give them direction or recommendations about how they go about recruiting.
However, we do ask these questions. For example, every time we visit a CSIS regional office, whether in Ottawa or Vancouver or Toronto, we ask: ``What are your practices in terms of recruitment; are you succeeding in getting the mix that you are looking for; where are your gaps?'' We do look at this. We also, each year, take great care to devise a research plan that will reflect what is topical, what is front of mind for Canadians. If you look at our last few annual reports, I would hope you would see that we have looked at, for example, their investigation of Sunni Islamic extremism. The year after 9/11, we looked back because we wanted to inform ourselves on how clued in they were. Did they know what was going on with this probably not even an emerging threat at that point, a very real threat, but one that hit us all in the face on September 11?
Our work is meant to provide focus and to determine that the service is not staying mired in the past but is concentrating its investigations where they ought to be in order to protect the security of Canada and Canadians.
Senator Andreychuk: In that vein, what do you do with your analyses? What feedback do you give to either the government or CSIS?
Ms. Pollak: All of our reviews, which are the lengthy research projects of which our annual report is a very fine distillation — you are only seeing the tip of the iceberg in that public report — are sent both to the director, because obviously there is no point in us identifying gaps or issues and not bringing them to the attention of the service itself, and to the Inspector General, who performs an internal watchdog function. That person reports to the Deputy Solicitor General, and therefore is essentially there for the minister.
We are informing the government and the service of our findings.
Senator Andreychuk: One of the original problems was that the intelligence capacity was under the RCMP, and when the two were separated, report after report pointed out the turf wars. I sat on a security committee of the Senate in the late 1990s, when turf wars were still an issue, although it seemed to be heading in the right direction. There was more cooperation.
One of the other major points made three years ago was that there must be a sharing of information. Have you delved into that problem, and what have you recommended?
Ms. Pollak: The question of the relationship between CSIS and the RCMP is always paramount for us. It is one we pose every time we visit a regional office and every time we look at an investigation. We ask what information has been shared and we also ask about the relationship.
Five years into my position with SIRC, I would say with complete confidence that it is a good working relationship. Inevitably, you do have occasional personality clashes, but I would not want to suggest that it goes beyond that. It is not systemic or institutional. I think they understand and recognize that they must work effectively together because they have common cause in some areas. It is a very healthy relationship on the whole.
Senator Andreychuk: One of the concerns that have been raised is that we are now sharing information beyond our borders. While we may do it for the basic purposes of stopping terrorism, there is an anxiety that perhaps some of the information in the hands of other countries may be used for purposes other than those we intended.
Have any cases come up where there has been some difficulty with sharing information with other authorities? Do you have any fears about that yourself, that it may be misused by other authorities?
Ms. Pollak: We are very sensitive to the issue. Obviously, nobody can ignore what happened to Mr. Arar. It is again a subject that we always probe when we are looking at CSIS investigations; whom have they shared information with, including foreign states, what is the nature of that information — it does vary from country to country, depending on the level of trust and the length of the history between Canada and the country in question.
We have not seen any specific instances where information has been passed to another country that caused us concern. It is something we always are mindful of and are looking for.
Senator Andreychuk: Both of you have made comments about what changes you think are necessary. Are there any other areas of a broader intelligence system that would be helpful? In other words, we seem to be dealing with people in their own areas. My concern is that at the end of the day, we have all of these pieces. Do we have the best system overall and the best accountability for that system? We are giving up a lot of rights to various agencies and tolerating a lot of intrusions. I am wondering whether, in the end, we are paying too high a price because of this pigeonholing. Do you have any advice as to how we can make the system better for the purposes of protecting us, thereby making the price we are paying by giving up some of our rights worth it, as opposed to having all this busy activity so that in the end, we wonder if we are any safer? When I read the newspapers, I am bombarded with evidence of gaps. It did not work because it was not in my area; it was in someone else's area. Is there any way we can improve the entire system?
Ms. Pollak: I have a few thoughts. There are a number of forms of accountability that public institutions ought to, and do for the most part, respect in Canada. I would like to say that reviews are great, but you can review agencies to death that are meant to be out there doing investigations. That way, they are completely tied up in knots always responding to the review mechanisms. I would simply say, let us not forget about the ministers. There are ministers for each of these agencies. The ministers are the people to whom these heads of agencies are accountable.
The ministers should be speaking to Parliament as well and accounting for the activities of their agencies. That is an observation. You also have the Privacy Commissioner, the Information Commissioner and the Auditor General. They are all very important pieces of that puzzle, and they all have expertise and powers that can assist in ensuring that those agencies with a lot of power exercise it appropriately and within the law.
Ms. Heafey: First of all, I do not think the Information Commissioner will be looking at the same issues as we would be looking at. I would like to give you an example. You may know of it already, and if you do, stop me.
In Northern Ireland they certainly know a lot about terrorism, and they have a police ombudsman there who has extraordinary powers. Her name is Ms. Nuala O'Loan. She has a very large staff and does all the investigations. Where there are complaints, she does audits. It has not hampered the police services there. It is going very well. They do not always like it, but who does? I do not like it either when the Information Commissioner or the Privacy Commissioner comes to our organization and says we have not done something. It is part of what we need to do; it is part of what we have to live with. I know that in Northern Ireland it is not a problem.
Ms. Heafey: The excuse sometimes given by agencies, that it will prevent them from doing their work, is not valid in my view. I see our role as helping. We have spotted things after the fact that have been very helpful to the RCMP, perhaps drawing their attention to troublesome areas or to members in a certain area that they would have no way of knowing about.
If the agencies are organized and have certain powers, then they should be accountable. I do not think the complaint about being reviewed to death, which I have heard from the RCMP, is valid.
Senator Andreychuk: Thank you.
Senator Cools: I have been listening to the witnesses with great interest and I thank them for their considerable candour.
I believe I voted on the bill when the security branch of the RCMP became the new entity of CSIS. You have registered you profound concerns with great clarity before the committee. My question pertains to what I hear as the underlying problem, such that the entire system is failing. By ``system,'' I mean ministerial responsibility. Many of the problems that you have spoken to should be dealt with by able and competent ministers, but obviously, that does not happen. In a way it is a failure of ministerial responsibility and so one would think that Parliament would step in; and I view Parliament as a weak institution these days. It would seem that Parliament is not capable of holding a single minister to account. To what extent will these problems be fixed by another amendment to another act or another decision to set up another review board or commission? At what point do we have to face the problem for what it is — a Constitutional failing of the system, particularly in respect of ministerial responsibility and accountability of the department?
We cannot get a minister to come before any of the committees on which I serve. I am not a member of this committee, but rather I am sitting in for another senator today. Ministers will appear before a committee for two hours on a bill that is lengthy and complex, and then disappear; and we might not hear from the minister for another year. Yet, when officials of a department appear before the committee, they raise issue after issue and problem after problem. Why do ministers not raise these matters for the committee? Why do ministers not troubleshoot all of these problems? How many more commissions will we have? How many more independent agencies will be set up? How many more taxpayers' dollars will be spent? These are political questions for the most part, but I cannot help but wonder where the minister is in dealing with these problems.
I served on a tribunal and I know that some agencies and government departments suffer from ministerial negligence. They seem to need some serious ministerial supervision. Perhaps you cannot answer or comment on that, but what thoughts do you have? This issue bothers me deeply, that so many of these tasks have been taken away in the name of independence. There was a time, for example, when the parole authority fell under one department of government, until someone took it away, and the number of parole board members, plus staff, kept growing. The point is that ministers are not doing their jobs.
The Chairman: Perhaps I might say one or two things. To date in this committee we have had quite fulsome attention from ministers who are prepared to reappear if asked. We have on the committee list ministers who will appear for the first time as well as ministers who will reappear. To date, Senator Cools, we have enjoyed quite fulsome access to the ministers, and when such issues as these arise, we will certainly consider inviting ministers to come back.
Senator Cools: Well, perhaps the minister should come back and answer the concerns that these witnesses have raised directly. Obviously, Madam Chairman, you must be a woman of great influence, because I served on the National Defence and Security Committee when Bill C-17, the Public Safety Act, was before us. The then minister appeared before the committee for a short time and we heard from two witnesses in all. The bill went back to the Senate after a few days before the committee and there was little debate on it. The kinds of questions raised by the witnesses today should also have been put within the context of Bill C-17.
The Chairman: Certainly, we have quite a while yet before the committee will have completed its task. I think all the ministers who have been before us have indicated that they would be willing to reappear before the committee.
Senator Cools: I have no doubt that someone will come, but I am making a larger point.
The Chairman: Perhaps our witnesses would care to comment on that.
Senator Cools: I am not up to date on these kinds of issues because I do not work on them. At some time, this government and future governments will have to pay more attention to ensuring that our system functions. I am hearing from the witnesses today that it is not working. You are suggesting that if we had one more power here or one more task over there, the system might work.
Senator Jaffer often raises these kinds of issues. On these matters, you are dealing with people in a direct manner. If people feel maltreated or wrongly prosecuted, it is not an abstract matter; rather, it is their personal lives.
Ms. Heafey: Senator, I have been at the commission for seven and one-half years. After the first year I tried to whip up interest among members of Parliament. I always made a point of sending letters and my annual report. In the report I pointed out the problems and offered to speak to members of Parliament. I did not know what else to do. I could not get Parliament to notice that there are problems. Now, I know there are so many other things going on that sometimes it is difficult to focus on one agency. We certainly did try to get that going so we could indicate in my annual reports all the continuing problems that we were experiencing and that needed attention.
That is why I would love to have a dedicated parliamentary committee to look at and be involved in this area. I think it is important and should happen; and it will, obviously.
Senator Cools: I was very struck by the pleas from you people for assistance to do the work you have been asked to do. You are not asking for anything other than to do what your enacting legislation or your authorities and your mandates direct you to do. You are just basically asking to be allowed to function, to do the job that is supposed to be done. It made me think that perhaps this government should try to do the job it is supposed to be doing too. That would help a lot, I think.
Thank you, Madam Chairman. It is an extremely serious question, chairman, whether it is this subject matter or another. We know that Senator Kenny's committee is out there doing great work, but this Parliament has a particular job. The first job of Parliament is to make sure that the government functions well, and that governance is working well. Perhaps, Madam Chairman, we should begin a debate on that.
The Chairman: That is a question, Senator Cools, that one could take to the Senate. However, I can assure you that I have never been on a more energized committee than this one. Indeed, every witness we have keeps us very well informed and also curious to learn new things. This group we have had today is terrific. We are listening closely. We will pass views along; and as we roll along, we certainly will be having ministers back.
At the moment, however, I have the responsibility for making sure that all of our senators have an opportunity to ask questions in the committee. We have now, for the first time in weeks, reached round two. Senator Jaffer has had her name down, and Senator Joyal, and I certainly want to give Senator Lynch-Staunton his opportunity to question these witnesses because I know he has words of wisdom to say.
Senator Jaffer: I appreciate, Ms. Pollak, what you told us. We certainly have learned where we should be making some recommendations. I have two things to ask you. When travelling across the country, I found that people, even if they are aware of SIRC, are not willing to go to SIRC. I would like to hear from you as to what you are doing to make yourself known, especially in ethnic communities. What outreach work are you doing?
I have a very serious concern. I come from the province where the Air India trials took place. More than that, I have been involved in that for 20 years, trying to get government to give justice to these families that have lost their loved ones.
A respected lawyer by the name of Robert Matas asked in an article in The Globe and Mail on April 8, 2005, why did the Security Intelligence Review Committee, a CSIS oversight committee, fail to do a proper report on the spy agency's handling of the Air India case? SIRC concluded in 1992 that nothing of value was lost by the erasure of wiretap tapes; and then Michael Code, one of the lawyers who defended Bagri, said that was just nonsense. CSIS was sitting on a gold mine and reasonable diligence required them to know that. Their duty at that point was to preserve it and to pass it on.
I have a copy of your 1992 report. You had said, and I am paraphrasing, that CSIS did fulfill its mandate to investigate the possible terrorist threats and advise the appropriate authority. In light of what the judge has now said in the Air India case, are you planning to revisit your report and review what you had said in 1992?
Ms. Pollak: First, I do not think I could agree with what Robert Matas wrote in The Globe and Mail when he talked about not doing a thorough review. That report ran close to 200 pages, and I know that it represented many months of work and an extensive review of all of the documents related to the case that were held by the service.
I was not there; I want to make it clear. I came to SIRC many years after all of these events. The chair of the committee at the time, John Bassett, is no longer alive. There are not too many current people who could speak to this. In my own mind, I do not for a moment believe that SIRC did not look at everything that was available. I know that they did an extensive amount of work.
At this juncture, unless we were asked to do so, the committee has no plans to do a review because I do not think there are any new documents for us to look at. I believe they were all there when we did our review in 1992. The outcome of the trial obviously came as a surprise and a shock to many people, but I do not think there is anything new for us to learn.
Senator Jaffer: Not even after what the judge had to say about CSIS's behaviour? You do not think it is necessary to look at that as a review body?
Ms. Pollak: The judge did make some negative statements about the erasure of the tapes, and we criticized them for the same thing. We said it differently, but we did not really say anything different from what the judge said.
I think that SIRC's Air India review was fairly critical of the service. We identified why some things had happened in the way they had, why the tapes were erased, but we certainly did not say it was okay and give them a pat on the back. I think we would agree with the judge's view of the matter, but that was 20 years ago.
Senator Jaffer: Has SIRC met with the families at all?
Ms. Pollak: They did in 1992 when they did their Air India review.
Senator Jaffer: What about outreach with the ethnic community? What kind of outreach have you been doing?
Ms. Pollak: We do not do outreach as such. We have made some substantial efforts, and I think with some successes in the past couple of years, to improve our website and to make contact through that website, through new publications. I personally go out to speak at universities and try to explain what our role is to young people. Of course, these days, the young people in universities are a mix of the Canadian population, so that is my small piece of the puzzle.
It is a small agency. As you may have heard in my aside to my colleague, we are 20 people when we are fully staffed, which we often are not. We really do not have the resources to be going out and physically making contact with communities.
Senator Jaffer: Have you thought of making contact through ethnic media?
Ms. Pollak: No.
Senator Lynch-Staunton: Thank you, Madam Chairman. I apologize for being late. If any of my questions have been covered, please stop me and I will go to the transcript.
The last time we met, we had the RCMP commissioner here. I was disappointed that he had with him a member of the OPP and a member of the Ottawa police force, so we could not quiz him exclusively on matters relating to RCMP activities.
I hope, Madam Chairman, that we will have him back with his officials as soon as possible, and perhaps also ask him to explain why he is satisfied with what in effect is an emasculated complaints commission, if I can use that term, when I have not heard CSIS complain about its supervisory commission.
That being said, I would like to ask the chair of the complaints commission, how many complaints are before you right now? What are you doing right now?
Ms. Heafey: Complaints related to national security matters or all complaints?
Senator Lynch-Staunton: Complaints related to RCMP activities.
Ms. Heafey: There are 783. That is from Alberta to British Columbia, New Brunswick, all the way to the Yukon.
Senator Lynch-Staunton: Have they been lodged with you or processed by you?
Ms. Heafey: They have been lodged by us.
Senator Lynch-Staunton: Let me go back. If I want to lodge a complaint, I go to you. Then what do you do?
Ms. Heafey: Well, we usually give it to the RCMP, which is what the legislation requires, unless you are a member of a very vulnerable population. There are some people who have maybe experienced a very ugly incident with the RCMP and will complain, but when they find out that the first investigator will be another RCMP member, they back away and get very uncomfortable. Whenever we can, in that case we do it, but normally it goes to them. That is the way the legislation is set up. They look at it. They investigate. They make a report to the complainant, and if the complainant is happy with that, that is where it ends. If the complainant is not happy, then they come to us and ask us to review what the RCMP has done.
Senator Lynch-Staunton: Can you entertain an investigation without the commissioner's approval?
Ms. Heafey: Yes.
Senator Lynch-Staunton: I read this too quickly. My impression was that you needed the commissioner's approval. When does the commissioner step in?
Ms. Heafey: Well, the commissioner steps in as soon as we pass the complaint over to them. We get a complaint, we send it to them, then they investigate and the commissioner reports back to the complainant.
Senator Lynch-Staunton: Did you say there are occasions where you need not go to the commissioner?
Ms. Heafey: I do not need to send it to the RCMP.
Senator Lynch-Staunton: How do you decide what goes to the RCMP and what does not?
Ms. Heafey: As I said, if it is a situation where I think the person is just too vulnerable, then we will investigate ourselves and not send it to the RCMP. We will alert them — we have received this complaint and are investigating it.
Senator Lynch-Staunton: Is it a discretionary thing?
Ms. Heafey: It is discretionary.
Senator Lynch-Staunton: Could all complaints then be considered to be from vulnerable people and need not go to the RCMP?
Ms. Heafey: That is correct, except we do not have the resources to do that very often.
Senator Lynch-Staunton: Do you have a loophole there where you can entertain a complaint without the commissioner's approval?
Ms. Heafey: That is right.
Senator Lynch-Staunton: How many do you say you have now?
Ms. Heafey: We have 783.
Senator Lynch-Staunton: Are they actually before you right now for investigation?
Ms. Heafey: No, not for investigation. They are complaints that we have received. Some have been sent to them and some we are doing. For the most part, they are sent to the RCMP. I cannot break it down for you today.
Senator Lynch-Staunton: Well, I wish you would. When I read about your commission, I was sympathizing with you because the RCMP actually had a veto power over you, but now, from what I hear, that is not necessarily so.
Ms. Heafey: I am not sure whether we are getting confused. Maybe I am confused. They decide whether or not I get the information that I want. That is the problem.
Senator Lynch-Staunton: Can you entertain a complaint without asking the commissioner's approval, if that is the right wording?
Ms. Heafey: That is right.
Senator Lynch-Staunton: However, can they deny you access to the information to properly assess that complaint?
Ms. Heafey: That is right. That is the problem.
Senator Lynch-Staunton: Out of those you have before you, on how many will you be denied information do you think? What is the batting average?
Ms. Heafey: Well, for the most part they are fairly benign complaints that do not require a lot of information, but there is a small group that maybe has to do with national security or with information from an informant. We are prevented from seeing anything like that. We have a complaint now like that, where someone's home and barn were searched. No charges were ever laid, and therefore this man is very upset and says, ``My barn was searched, no charges were laid, so where do I go? You people help me.'' However, we cannot get the information to report to him because the RCMP is saying we cannot have it.
Senator Lynch-Staunton: Now SIRC does not have the same problem?
Ms. Pollak: No.
Senator Lynch-Staunton: Does CSIS have to give you the information or have to cooperate?
Ms. Pollak: That is correct.
Senator Lynch-Staunton: Are they more sensitive to security and sensitive intelligence matters than the RCMP?
Ms. Pollak: Well, of course, that is all they do. The RCMP is also involved in regular policing, and I imagine quite a number of those complaints are not related to security. That is the difference.
Senator Lynch-Staunton: If the commissioner were here today and I asked him why he accepts this kind of passive — if that is insulting I will retract it — complaints commission as opposed to having something more active that would really help the RCMP, what would he reply? I hope he does come and I will ask him. I am sure you have asked him, chair.
Ms. Heafey: I have not received an acceptable reply to that. We are in court right now trying to settle that. We are in the Federal Court of Appeal on May 11, trying to get some information on this complaint that I just summarized, in the hope that the court will say, ``Yes, turn over the information,'' and then we can respond to the complainant.
Senator Lynch-Staunton: We will leave it at that. Thank you.
The Chairman: Some around the table will recall that Commissioner Zaccardelli, when he was here the last time, did indicate that he would be quite pleased to come back and bring with him associates from the RCMP. Therefore we will have another session with him, and I would imagine that some of these questions will be raised.
Senator Joyal: I would like to draw to the attention of Senator Lynch-Staunton that part of the question that he has raised in relation to the power of the RCMP to refuse to release a document or information is covered by paragraph 45.41(2)(b) of the RCMP Act, which I quoted to our witnesses as being the empowering capacity of the commissioner to refuse to disclose documents or come forward with additional information that might be requested by the public complaints commissioner.
I would like to ask a final question in relation to the proposal that you, Ms. Heafey, made at the Arar commission, that a national commission of inquiry over security matters should be established to oversee all the activities of the various units, be it CSIS, be it telecommunication information, be it what we covered this morning, FINTRAC. We have asked the witnesses about the capacity to overview their activities and they could not provide us with a satisfactory answer.
Could you expand on the reason you made that suggestion and why we should take it upon ourselves to adopt it to answer some of the preoccupations that have been raised here today?
In other words, convince us that you were right when you made that recommendation to the Arar commission and why we should, in fact, include it as one of the main recommendations of this committee following the questions that were put by Senator Andreychuk, I believe.
Ms. Heafey: Senator, a part of the mandate of the Arar commission was to look at the RCMP.
Due to my experience with CSIS and the RCMP, and because of what happened with the appointment of the Arar commission, I wanted to look at the whole instead of focusing only on us. I think our legislation needs to be repaired and amended.
It is very possible in the climate in which we live today that another situation such as the Maher Arar matter will arise. In that event, we would have a body with the power to look across the board at all the agencies involved in national security. It would not have to be a large body, but it would acquire expertise. I say that because I have seen what the Arar commission has struggled with. For people from the outside who do not know this area, it is very difficult and complex. It would be more effective to have a body that already has expertise and has the power to look at everything in cooperation with us and with SIRC than to have another Arar commission. I do not know how many millions that commission will end up costing, and that is not the fault of Mr. Justice O'Connor.
A body that knows the area and how to get information, and that touches more than one agency would be the proper body to do the job, perhaps calling on our expertise and that of the RCMP and SIRC. I believe that would be much more efficient than establishing commissions, at the end of which, and after great expense, the people who have acquired expertise will not necessarily stay with the government.
Although I am not lobbying for this, we have spent a lot of time thinking about the most efficient means for conducting such inquiries. Such an agency could grow and would be in place with a core of expertise if another commission such as the Arar commission were required. We could contribute our expertise with the RCMP; SIRC could do the same with CSIS; the CSE commissioner could do the same with the CSE. That is what I envisioned.
Senator Joyal: Do you see it having a policy role? We always try to learn from our mistakes. I believe that Canadians are concerned about whether all these agencies are looking after the important issues of the day rather than being so preoccupied with their own domain that they are unaware of what is happening outside and are taking no preventive initiatives. Many who analyzed what happened in the United States said that all the information existed within the various agencies but no one put it all together.
Senator Jaffer referred to the very dramatic Air India issue. Should we have been able to prevent this? Was no one informed that something was being planned? Intelligence gathering does not happen overnight. You have to develop an integrated network. You have to exercise a lot of initiative before you become effective in intelligence gathering. Once you get intelligence, it must be properly analyzed and strategic judgments must be made on it, and so on.
We have heard 17 witnesses in this study, I believe, and I am still not convicted that someone somewhere is overseeing everything. I still have the perception that there is FINTRAC, there is CSIS and there is the RCMP running after the bad guys, and so on. Is there someone somewhere who has the responsibility of making the strategic decisions?
All that information has to serve a purpose, and that is not to correct, ex post facto, a disaster. Its purpose is to prevent a disaster. We all talk about the threat, but it seems that no one can put his finger on what the threat is for Canada.
I have listened as carefully as I can, as I am not an expert on these issues. However, although I am confident that everyone is working in good faith to the best of their ability and is dedicated and honest, I am not reassured that the overall system is the best it can be after three years and the expenditure of $10 billion.
Ms. Pollak: We have to distinguish between a discussion about strategic coordination and policy direction and integrated review or oversight. They are not the same thing, and I believe you are envisioning two different kinds of roles for such a board.
You are absolutely right that it is essential that there be an integrated locus — one decision point — for policy direction and guidance to the agencies so that everyone is more or less in sync with each other. That is not to say that we want to break down the independence of the different agencies, because they do have different mandates, and that is for a reason. However, it is essential that there be a broadly understood policy direction.
You are right that part of the problem in the U.S. was that there was no connecting of the dots. It was not a lack of information. They had collected information on every conceivable aspect of what led to 9/11, but there was no place where it was all coming together, being assessed and forwarded to the decision makers and consumers who needed that information in order to take preventive action. It is an important issue here in Canada as well as in every other Western democracy.
I am still unclear on the need to have a broad review of organizations that, while they are part of the wider intelligence and security community, are not engaged in covert collection of intelligence that affects the lives of Canadians. I am not sure why we need a review of the assessment groups in Foreign Affairs, for example, or the Intelligence Assessment Secretariat in PCO. I am not beating anyone's drum, it is just that they do very different things from CSIS, which obtains warrants to listen to your phone conversations or survey your Internet activity without you ever knowing they are doing it.
What is the Intelligence Assessment Secretariat at PCO doing that we need to have reviewed? There are other agencies, in Citizenship and Immigration and DND, for example, that do not engage in covert intelligence collection against Canadians.
Why do we need that kind of review? Why is ministerial accountability not sufficient?
Senator Joyal: That is a subject, madam chair, for later.
The Chairman: Thank you. We have a significant amount of time left in our mandate, which takes us at least to the end of the year. We have learned a lot so far. With every group that comes before us, we learn more, and we also have more questions. We will continue on our trail, and you have been very helpful today. As has been indicated by colleagues, your comments will lead us into other discussions that will be related to what you have been talking to us about today.
You are working in an important and difficult part of our governing society, and we wish you well in what you do. Certainly, your views will be considered around this table as we continue our discussions, and we will continue them with the Commissioner of the RCMP, with ministers and all those who will come before us. You have left your mark, and we thank you very much for it.
At 7:00 p.m. tonight, we have our video conference with Australia.
Honourable senators, I declare this part of the meeting over.
The committee adjourned.