Proceedings of the Standing Senate Committee on
National Security and Defence
Issue 13 - Evidence - Meeting of March 4, 2013
OTTAWA, Monday, March 4, 2013
The Standing Senate Committee on National Security and Defence met this day at 4 p.m. to examine and report on Canada's national security and defence policies, practices, circumstances and capabilities (topic: cyber security); to study harassment in the Royal Canadian Mounted Police; and to consider a draft budget.
Senator Pamela Wallin (Chair) in the chair.
[English]
The Chair: Ladies and gentlemen, this is the meeting of the Standing Senate Committee on National Security and Defence for Monday, March 4.
Again, we have another busy agenda today, and we begin with a topic that I think a lot of people find quite frightening. The commander of the U.S. military's Cyber Command, who also heads the top secret U.S. National Security Agency, was at a conference in Ottawa recently where he warned of a growing deluge of cyberattacks on the American private sector. He called it alarming and said that there is little the U.S. government can do at present to stop it. General Keith Alexander's very sobering words came as we are watching the U.S. military and government face big, across-the-board spending cuts, and of course dealing with cyber is a costly issue.
James Lewis is a leading American expert on cybersecurity and cyberpolicy and a fellow with the Center for Strategic and International Studies, commonly referred to as CSIS, but that is very different from the CSIS that operates in this country, just to be clear.
We invited Mr. Lewis to join us last fall, but I think a big storm intervened at that point and we could not connect. However, he is here with video link.
Mr. Lewis, I welcome you and am glad we have finally connected. Do you have any opening remarks to make, or would you like us just to jump in?
James Andrew Lewis, Senior Fellow, Director of the Technology and Public Policy Program, Center for Strategic and International Studies: I was going to say a few things.
The Chair: Please go ahead.
Mr. Lewis: Let me thank you for having me and I am glad we were not cancelled by a storm. Remember that in Washington, a snowstorm that causes damage only has to be a quarter of an inch.
The Chair: As Canadians, we know that.
Mr. Lewis: I am also grateful that they did not put the CSIS background behind me because I knew you would misinterpret that.
This is a topic that has become a major problem for national security. Many countries are developing cyberstrategies. Canada, France, and the U.K. all have strategies. Others, such as Germany and Japan, are developing them. The advance strategies that we see now have both diplomatic and military elements as well as the traditional emphasis on technical defence. Events in the last year, as you noted, have heightened public concern, with the attention to Iran and to China. These are things that have helped focus American policy-makers.
The U.S. has had an internal debate for about three years, and in the last six months a number of documents have come out as a result. These include a document on the role of the military, executive order on protecting critical infrastructure, and just last week a document on protecting trade secrets. There are a lot of developments here.
I would like to point out that many governments are experimenting with approaches to cybersecurity and cooperation. I am happy to take any questions you might have.
The Chair: That is great. Thank you for that scene-setter. I wanted to start things off, and this is where I was going right at the beginning. Recently on CBS's Face the Nation you were asked what kind of cyberdefence the U.S. really has in place and you said it was a faith-based defence, which we have heard said of our own country as well. Would you care to elaborate?
Mr. Lewis: Sure. If you look at where we were five years ago, the U.S. is better off than it was. That is true for a lot of countries. There has been a significant effort to harden government networks, at least on the military and intelligence side. There has been considerably more attention to cybersecurity, but we still do not do much with the private sector. When you think about who owns critical infrastructure, the bulk of the economic resources, do whatever you want, that is where it really is faith-based. It is lucky no one has really come after us in a hard way. There are problems on the espionage side — so far no attacks — but there is no compelling strategy to get the private sector to cooperate in better cybersecurity.
The Chair: That raises a whole other series of questions about privacy and the role of government. We will come to that throughout the course of our questioning today.
Senator Dallaire: I think we must establish where this situates itself, cyberwarfare, cyberattacks and so on, from a grander strategic dimension as opposed to getting into the weeds too fast. As we enter this era where we do not see nation-to-nation classic use of force warfare, big manoeuvre armies and things of this nature — and we are adjusting to the type of conflict that can go beyond its borders and have an impact on us through extremism and so on — do you not believe that cyberwarfare is the modern version of total warfare à la World War II? That is to say, it is far more inclusive of the totality of societies within and beyond their borders, and we should be looking at it with a whole new national construct of being essentially at war and how we are defending ourselves.
Mr. Lewis: I tend to take a more relaxed view of the situation for the following reasons. I agree there are significant changes that will challenge both democracies and authoritarian regimes. Hopefully it will challenge them more, but I do not think we are in a cyberwar. One thing you could see emerging in the last year or two is an international consensus on what qualifies as the use of force in cyberspace, what qualifies as a cyberattack, and it is consistent with existing international law. There has to be destruction, damage, casualties, death. If it is below that threshold, it is not warfare. When you look at the activities of some of our major state opponents for the U.S., and I think also for Canada — that would be Russia and China — they have been careful to stay below the threshold of warfare, so we are in a new kind of conflict. It is a new kind of vulnerability for nations, a new source of risk, but I do not think it is war.
Senator Dallaire: I am not disappointed with your comment. You are bringing an objectivity that I may not be reflecting here. However, threats that would use the instruments of cyberwar are not classic threats. These are not limited to nations. They can be global in construct and be nearly James Bondesque in some of the perceptions that are out there us because of the extraordinary vulnerability we have being so dependent on these systems.
Do you not believe that we should be looking at the threat assessment in a completely different context than actually trying to finger another nation or classic enemy of the past?
Mr. Lewis: You put your finger on a crucial point, and it is one that I am wrestling with. I just finished a very long study, which I will be happy to send to the Senate, on what actual cyberattacks would look like. The conclusion of that was that it is a new kind of weapon. It is fast, relatively cheap and has global range, but it is not very destructive. That does not mean that there are not things that you could do that would be damaging to a society, but it is not the most destructive weapon in the arsenal.
One of the things that puzzles me, though, is that the capabilities needed for a truly disruptive cyberattack, say turning off the power grid, disrupting financial services, are well within reach of advanced non-state actors, including hackers — probably not Anonymous; they tend to be a little overrated. However, when you look at some of the other groups that are out there, they could easily launch a damaging attack, so one of the things I am wrestling with is why have not they done this?
I understand why Russia and China have not launched an attack. They do not want to start a war. In that sense, I think traditional state politics still make sense. However, you have these new actors who are very close to getting the capability to cause disruptive incidents, and why they have not yet done so remains something of a mystery.
Senator Nolin: Thank you for accepting our invitation. At present, the Obama administration is examining a potential role for the NSA in defending the nation against imminent or ongoing cyberattacks that threaten the overwhelmed private sector resources. We had the same concern 10 years ago after 9/11, so that is why I am raising that question. Could you please discuss the privacy implications of involving the NSA more directly in defending the nation against cyberattacks?
Mr. Lewis: Sure. It is largely a political concern, and to some extent a legal one. If you do this right, the information you need for better cybersecurity does not include personally identifiable information. It should not affect privacy. We are talking about ones and zeros; we are talking about patterns that point to malicious activity; we are talking about signatures that involve specific cyberattacks. None of these involves personal information.
There is a little bit of a debate about something. Pardon me for being technical for a moment. You probably know this, but the header of an email, for example — the addressing information, such as who it is from — is the one place where there might be some overlap with privacy.
If this is done correctly, privacy does not need to be affected.
The dilemma is that after the experience of warrantless surveillance in the previous administration, some people strongly distrust the government. How we can reassure them and let them know that these rules are in place is a major problem for the U.S.
Senator Nolin: Let us explore now the question of intellectual property rights and the exchange of information insofar as the NSA looks after that. What is your take on that kind of area where the private sector is quite concerned? In Canada, it was a great preoccupation.
Mr. Lewis: It is a major problem. One of the dilemmas we have is that the NSA is able to spy on Chinese military entities, and so it has a good sense of the information they have been able to harvest from American companies. This gets into a rather complicated legal dance in the United States in that it is difficult for the NSA to tell people that they have found their intellectual property on Chinese military servers, so that has been something of a handicap.
The NSA — and these are General Alexander's words — cannot be the fire department; every time a company has problems, it cannot go running off. That is why we need a more comprehensive solution.
However, I think that the amount of information that has been lost by U.S. companies is shocking. There has recently been released a national intelligence estimate, which is one of our formal documents, laying out the scope of cyberespionage. It identifies four countries, primarily China, as responsible. The NSA, as are other agencies such as the FBI and the Department of Homeland Security, is grappling with how to staunch the outflow.
Senator Nolin: I have a question on the interdependencies of our two countries, but I will wait for a second turn.
The Chair: We will come back on that. I think that is an important issue.
I do not know if you want to make a distinction for us before we move on here regarding proprietary information versus the privacy issue. Would you like to make just a brief comment, and then we will move on to our next questioner?
Mr. Lewis: Sure. The information we would define as intellectual property includes technology designs, blueprints or business confidential information; and contract negotiations, mergers and acquisition negotiations. However, this is not usually what we consider private data. I would regard information on the specific individual — their health records, income, address, personal communications — all of that should be protected by law and excluded from an ability to be perceived or recorded by the NSA.
I will tell you a funny story I heard from friends out of Fort Meade. When they are looking at foreign intelligence sources — when they are spying on the foreign spies — if they come across U.S. person data, the situation immediately becomes much more complicated. We know in some cases some hacker groups have started putting in references to U.S. persons in order to complicate the espionage and law enforcement task.
The Chair: Amazing. Thank you.
Senator Mitchell: Thank you, Dr. Lewis. This is a very interesting and informative discussion, and we appreciate it greatly. I am interested in your take on cyberspace and war fighting. There was an article by Martin Libicki, ``Cyberspace is Not a Warfighting Domain.'' It seems to me that you are really echoing his assessment, namely, that it is not as aggressive at some level. However, is there an aggressive side to cybersecurity that countries like ours might consider, that there could be cyberweapons that would be useful to have in the arsenal?
Mr. Lewis: Yes. Part of it is that we are in a period of experimentation, and some of that includes experimenting with military doctrine and military strategy, as well as the actual development of weapons.
The Department of Defense is conflicted on this. They will tell you that cyberspace is a new domain. I have been told by senior officials there that calling it a domain helps them when they think about how to plan, budget. At the same time, when you talk to them about cyberweapons, they say it is a support weapon and is something you can use to shape the battlefield. We will not ever see a cyberwar, per se, where someone leverages a cyberweapon and the response will be cyber and there will be no kinetic exchange. They regard that as highly unlikely, and I do as well.
I think we are looking at a different situation. We did a report this summer. Forty countries are developing military doctrine for cyberspace. Of those 40 countries, 12 are developing offensive capabilities. Not surprisingly, if you look at the 15 biggest military spenders in the world, those are the 12 countries developing offensive capabilities.
I think this is on the same path as, say, airplanes in 1914. When the French general who commanded Allied forces in the First World War was first asked about airplanes, he said, ``They are really interesting. It will make a nice replacement for the bicycle.'' Two years later, he was not saying that.
We are going through the same path with cyberweapons. They started out looking rather primitive. Soon, I think every advanced military will have to have them.
Senator Mitchell: Thank you very much. In the end, it would be nice to dismantle an enemy's army without having to kill anyone, if it could be really effective.
How do you organize all of this? You have jurisdictional issues. We have jurisdictional issues. We have the private sector, the public sector, the provinces and the federal government. The federal government certainly takes its role in the military seriously. If British Columbia were to be attacked, we would not ask British Columbia to pay for the war.
That said, how do you coordinate all of this? There are an infinite number of points where we could be attacked; some are private sector, some public, some provincial and some federal. How do you organize the defence of all of that in the U.S., and how would it best be done in a country like Canada?
Mr. Lewis: This is a major problem. One of the things that the U.S. has been working on for about five years is how to coordinate. We did not have a coordinated strategy really until the Obama administration. If you were to point to a couple of areas where they have made organizational progress, it would be in the creation of the Cybersecurity Coordinator in the White House, who is responsible for overseeing all aspects of the policy. The office has had its ups and downs, but it does effectively coordinate the many agencies involved.
You also saw the creation of Cyber Command. Cyber Command was created after a very unfortunate incident in 2008 where the Russians were able to penetrate one of DOD's secure networks, the SIPRNet. That excited DOD so much that they decided to centralize all their defensive activities and then moved beyond that to give them an offensive role.
If you look at the two focal points for coordination in the U.S., it would be the White House Cybersecurity Coordinator and DOD's Cyber Command. One of the things that is an advantage — and this will be a little imprecise — is that you can think about defence at a national level. You have national networks, such as Bell Canada. Look at what Bell Canada does. An agency working with Bell Canada would be able to provide some national-level defence.
Finding a way to coordinate between the military, law enforcement and intelligence is very important, and that is where the White House office has been handy.
We have federalism problems, too, and it is more in terms of getting companies to agree to do certain things. If you look at the electrical companies in the U.S., they have local regulators, state regulators and national regulators, and the odds of getting those three sets of regulators to move in the same direction at the same time are not impossible, but it will be a challenge. At the national level, there has been progress on organization, but at the federal, state and local levels, there is some work to be done, but you can think of a strategy that would focus on places where the national entities are more likely to have a positive effect.
Senator Mitchell: Thank you very much.
Senator Plett: Thank you for being here, Mr. Lewis. You may have answered at least in part one of my questions already, but I have a couple of questions around a few articles that you have written.
In the recent Foreign Policy article, you described the current state of U.S. cybersecurity as feeble, and you spoke favourably of an active defence role for the military.
Mr. Lewis: Yes.
Senator Plett: Would you be able to explain to us what ``active defence'' entails, and are there any cyberthreats for which an active defence would be inappropriate or ill-suited?
Mr. Lewis: Those are great questions. On the vulnerability side, it is worse than I thought. A number of studies that we pulled together last month showed that about 90 per cent of the successful attacks require only the most basic techniques. You can download stuff freely off the Internet that will let you disrupt the power grid or disrupt a major company. I started doing that and then I thought, ``It will be embarrassing if the FBI shows up at work. Maybe I will stop.''
The state of defence is worse than I thought. It is incredibly easy to hack. Again, getting back to an earlier question, I worry about when the non-state actors out there will discover they can acquire this capability and decide to use it.
Active defence is a little more complicated, and there are areas where it is appropriate and areas where it is inappropriate. This has been an interesting experience to watch here at CSIS. Clearly, and this is in former Secretary Panetta's speech of October 19, if the U.S., through its intelligence means, detected an incipient cyberattack from Iran, it could take steps to block that attack. The steps would occur in Iran that would be the use of offensive cyber capabilities for defensive purposes. That would be an act of defence.
The U.S. could at the borders of the United States in cyberspace — there are borders in cyberspace — intercept malicious incoming traffic, and that would be a DOD function. That interception, kind of like what NORAD does or missile defence, would be a form of active defence.
When you get below that level operating overseas, it is perfectly consistent with U.S. law. Operating at the border at a national level is perfectly consistent with U.S. law.
When you get below that level and look at individual company networks or individual telecommunications service providers, it would be inappropriate to give DOD a role in these facilities. This is the place where the military should probably not have the lead, whether it is a law enforcement agency or something like public safety in Canada. It is not a military task.
We actually had a war game here with a number of former cabinet officials, and this was one of the points where they put the brakes on. They said with respect to striking a foreign target, they all got it, if the evidence is good, but having DOD help out ConEd in Chicago is not really something they want to do. Therefore, defining the limits of active defence would be one of the tasks of the next few years.
Senator Plett: My second question is also with respect to a paper that you wrote called ``Raising the Bar for Cybersecurity,'' in which you urge the President of the United States to direct government agencies responsible for critical infrastructure to adopt the list of top mitigation strategies endorsed by the NSA and Australia's DSD. As well, you call upon agencies and organizations to continuously monitor risks.
Could you explain what you mean by ``continuous monitoring,'' and to what extent does continuous monitoring require system operators to rely on technologies whose trustworthiness has not been assured through formal evaluation?
Mr. Lewis: It is really interesting because when I first heard about this Australian program, their Defence Signals Directorate, I did not believe it. I ended up doing a fair amount of research, including talking to a number of Australian officials. They told me they had identified a number of mitigation strategies. They have 35. The top four block 85 per cent of all known attacks. That is pretty impressive, but to get this to work, you have to have some ability to continuously watch what is happening on your networks.
In the case of the Australians, it was their ministry of science and innovation, I think, that undertook a pilot program. In the U.S. it was the Department of State that undertook a pilot program, and these are not complicated technologies. Some of them are the existing antivirus programs that many people already own from McAfee or Symantec. Some of them are things you would use to manage your network to see what traffic flows look like. The difference between now and a couple of years ago is that there have been so many incidents people have been able to collect data on them and identify what works.
The startling part here is that some fairly basic hygiene measures, if you pay attention to them on a regular basis, will greatly reduce risk. This was the debate in the U.S. We have a wonderful law called the Federal Information Security Management Act, and it used to require that agencies look once a year to see how they were doing.
A lot can happen in a year, and so the fact that you had a snapshot, say, on September 30, 2011, and then you took another snapshot on September 30, 2012, did not mean you were secure. That is where the emphasis on continuous monitoring came up.
These are fairly basic technologies. It is an initial step. It is not the solution to everything, but it does reduce risk.
The Chair: Before we go to our second round, I would like to touch on a question that Senator Dallaire began with. When we look at an incident like 9/11, the buildings came down and nearly 3,000 people lost their lives. It had a devastating impact on the economy and the country and psyche and the defence and the reaction that we saw to it. It was treated as an act of war. However, a cyberattack on Wall Street or on critical infrastructure or bridges, airports, power grids, you name it, would have the same kind of devastating effect and could also lead to loss of life in some times great numbers. What then distinguishes that as an act of war versus the other?
Mr. Lewis: I am not sure that with current techniques there would be a major loss of life. There are rumours that there have been a few casualties as a result of cyberattacks. There was an incident in Russia that was inadvertent but that caused a loss of 30 lives. I am not sure at the current time we could see a major loss of life on the scale of 9/11. You could see considerable disruption, so disrupting the financial sector, disrupting banks, commerce, electrical power, perhaps transportation. Those are all targets of concern, but I do not think you would see the loss of life.
The issue of when it becomes an act of war is a difficult one. As you know, an act of war is a political decision, so if the Iranians blow up Khobar Towers, we could decide it is not an act of war. That does not mean there are not responses we could take, but I think it will ultimately be a political decision.
The U.S. has been moving in the direction, and other countries have been moving in this direction too, of applying existing standards from international law and practice, so it will depend on the use of force, the casualties and the destruction. It will depend on the scope and duration of the attack. I was having a discussion with some NATO officials who said basically the attacks on Estonia were not an act of war. NATO did not regard them as triggering Article 5. However, if they had continued for a longer time, if they had induced a broader economic effect, if they had been more like a naval blockade, then it could have triggered Article 5; it could have been an act of war.
We are in an area where we do not have a lot of experience. I think we will get that experience. Sorry. As we get the experience, we can begin to scope out some of these issues.
The Chair: I think we are too, unfortunately.
Senator Day: Dr. Lewis, can you refer back to the release of the information that came out of what is described to us as a U.S. network security firm describing what was going on in China in Shanghai and identifying even the building? We saw photos of the building. Was this a coordinated release of information or a unilateral release of that intelligence that had been gained, and what was the purpose for releasing that?
Mr. Lewis: One of the things I think is funny is if you look, you had two New York Times stories that were relatively a big deal. You had a national intelligence estimate, you had the executive order, and you had the trade secrets strategy come out of the White House. There is no way the Chinese will not believe that was coordinated, but I was involved in at least three of those activities — you know what the U.S. is like — and it was not coordinated. In fact, it was surprising to me in some cases where the people doing the executive order were not coordinating with the people doing the trade secret strategy, even though they are in the same building. Welcome to American government. It was not coordinated. I think what we saw was in some ways a confluence of events, that the pace of Chinese activity in particular has picked up considerably in the last year or two and you had people focusing on it, getting to the same point, but not coordinated.
Senator Day: Is there sort of a ``blame and shame'' approach by saying not only China is doing this, Iran is doing this, but giving more specific evidence of where it is coming from, what is going on? Is that an attempt at stopping this?
Mr. Lewis: I do not think it will work. Six months ago, the question I was looking at is how do we signal Iran that we are unhappy with what they were doing. The question I am looking at now is what do we do when Iran ignores our signal? The Chinese are big boys. A few newspaper articles will not cause them to burst into tears. They will look and see what do we actually put behind this.
Naming and shaming people like that is a theory. If you were precise and attached it to specific actions, then maybe it would have some effect, but what we have done so far is just the opening scene.
Let me give you an example, because I was talking to someone specifically about the Shanghai Institute this morning, and interestingly enough, a number of the professors there who work with the People's Liberation Army studied in the United States. If you were really going to name and shame, if you really wanted to have an effect, you would put these people on a watch list and say they were denied entry into the United States. Until we get to specific actions like that, I do not think you will see much effect.
Senator Day: As a final on this question, can you tell us who this company is, the U.S. network security firm Mandiant? Is that an independent company? Is that a government agency? Who is that?
Mr. Lewis: It is an independent company. In the U.S., many companies are in the cybersecurity field that are pretty good at research, and they are private actors. They can use data they can get freely from the Internet to identify some of the specific actors involved. In Mandiant's case, they are on contract to The New York Times, and so they are the people responsible for helping the Times defend themselves. I think that gave them an opportunity to get a little more attention than they otherwise would have gotten.
Senator Dallaire: You stated that we are using old or known instruments to identify the threats or essentially whether we will consider whether we are being war conditioned or whether this is an act of war and so on, using humanitarian law, law of armed conflict and the like. You are in the realm of participating in attempting to shape the future by trying to ponder what is coming down the road and knowing the exponential speed of how stuff can evolve in this realm. My iPad is out of date the day I buy it; it is worse than the car.
Surely some of us have to be thinking of a whole new set of rules to establish whether or not we are in the scenario of conflict or threat, and that will permit us to prepare a much more deliberate defensive posture to this than what is described as sort of classic war, nation upon nation.
Are we in the realm of looking at how we have been working for over 50 years at nuclear arms limitations and non- proliferation and the problems we are having with that? Is not this another example of that high-scale problem versus the French general with the bicycle and the plane?
Mr. Lewis: It is a problem, but one of the things that I think a lot of researchers have found in many countries in Europe, some in Canada and in Asia, is that most of the activity we see now can be governed by existing international law, either criminal law or the law of armed conflict. There are some areas of ambiguity. One of the things to watch for is whether these ambiguities will become sharper. Will they become more prominent? That is something that only time will tell. The Russians and the Chinese for a while argued that we needed to completely redo the laws of armed conflict because information was a weapon. I understand that information is a threat to their regimes. I used to ask them: I can see if you drop a Sunday newspaper from the top of a building and it hits someone. Maybe it would qualify as a weapon, but otherwise I do not see it. That has been the one effort to expand this. The places we have had to look at are these grey areas. When does the denial of service attack that does not destroy anything or does not cost any lives become an act of war? When does the involvement of non-state actors trigger something beyond typical law enforcement actions? This is a place where people are kind of gingerly feeling their way forward. Again, we do not have a lot of experience. I think certainly for us, the common-law tradition of experience driving policy and legislation is really the best one here. Until we see a little bit more, it will be hard to say where the existing law is inadequate, but so far most of the activity we have seen could be governed by existing international law.
Senator Dallaire: How do you identify when Google goes rogue, and the dependency we have created on these capabilities is making us in fact vulnerable and they have not necessarily always responded in the most correct ways? We look at the fight going on between the library at Harvard and Google and your government in regard to out-of- print stuff and digitization. There does not seem to be a structure that is ahead of this game. It is reacting to it. The scale of complexity is enormous. Do you believe maybe that we should create in this case — I have not always been for it — a sort of fortress North America in cyber?
Mr. Lewis: To break the problem into parts, the security parts are in some ways the easier parts, because they do follow a relatively consistent pattern, especially for states, but also with non-state actors. The behaviour of these guys in using cyber as a weapon or as an attack is consistent with their behaviour in using other weapons. Where you definitely get into some difficult areas are exactly the areas you identified, the treatment of intellectual property, the treatment of privacy. In these places the problem is much more difficult.
One of the strong suggestions I would make is to try, to the extent possible, to separate these things. It is hard because there is some overlap between privacy and protection of intellectual property, but it is clear that the new technology will reshape how we think about intellectual property. It is clear that how we will treat privacy will be different because of all the information online. We do not have the rules in place to deal with this effect.
On the security side I am a little more comfortable. There is an effort to coordinate not only between the U.S. and Canada but also among other close allies like the U.S. and Australia. That is a beneficial avenue on the security side. On these other issues, privacy and trade, it is much more complicated and it will just be harder to work through them.
Senator Nolin: Dr. Lewis, our two countries are closely linked on critical infrastructure, so how do you describe Canada's engagement on that front towards your country?
Mr. Lewis: I know a fair number of people in public safety and I am pretty much convinced that they do a good job of coordinating with DHS and with the FBI. I have a pretty good knowledge of the strength of coordination.
On the intelligence side there is, as you know, close coordination and cooperation, and that appears to be working relatively well. I do not know the military side as well, so I know more the public safety, intelligence side. In some ways, those are as important, if not more important, than the military role so far.
Overall, the coordination seems to be going pretty well. I will not say there are not areas where we cannot improve it. It will be useful to think about things like joint exercises and things that we have done in the physical world and transferring them into the cyber world. Overall, this is a pretty good partnership.
Senator Nolin: If I may, a last question about the relationship between the federal level and the provincial level. We, too, have that problem, and I am sure they are sharing those concerns and experiences with you. Where can we benefit from your experience or, vice versa, can you benefit from our experience?
Mr. Lewis: This is probably a place where you can help us more than we can help you, so anything you want to share, send it. It has gotten even worse here now, because they used to say state and local. I think you are ahead of us in this, too. Now they say state —
Senator Nolin: That was more than 10 years ago, and that was the focus of our concern in this committee at that time.
Mr. Lewis: It is nice that we share this problem, so any advice is welcome.
The Chair: Thank you so much, Dr. Lewis. We really appreciate your insight on this and your rather calm approach to some of these issues. I think that will help us think our way through this and what we might add to the debate there. I am glad we finally connected, despite whatever you did to the Chinese there that you think. Thank you so much for being with us.
We will shift our focus once again to the issue of the RCMP and the question of harassment in the RCMP. Today, we are pleased to hear from the RCMP External Review Committee. This is the second civilian review body to be heard from at this committee. Last week it was the Commission for Public Complaints Against the RCMP, with their rather extensive study.
The RCMP External Review Committee is an independent, arm's-length, labour relations tribunal that reviews grievances, disciplinary measures, discharges, demotion cases and anything that is referred to it by the RCMP and by, I think, individual members. Is that fair to say as well? Of course, some of these cases would involve harassment.
Catherine Ebbs is Chair of the RCMP External Review Committee. She was appointed, by order-in-council, under the Liberals in 2005, and her three-year term has been repeatedly renewed. You have been around for a while on this issue, and we are glad. That will give you insight. Thank you. Also joining Ms. Ebbs today is David Paradiso, Executive Director and Senior Counsel. I gather you have some opening comments to make. Please go ahead, and welcome.
[Translation]
Catherine Ebbs, Chair, RCMP External Review Committee: Madam Chair and distinguished members of the committee, thank you for having invited me to speak before you today. I am pleased to have the opportunity to explain the mandate of the RCMP External Review Committee, the extent of its powers and the reasons for its creation and its functions.
[English]
The RCMP External Review Committee, or ERC, was created in 1986 to provide RCMP management and their regular and civilian members with an independent, arms-length labour relations tribunal. For almost 25 years, the ERC has provided the RCMP with an objective and neutral service. We also offer the general public a unique window into the labour dispute mechanisms of the RCMP.
Because the RCMP is the only non-unionized police force in Canada, the ERC's independence from the internal processes is essential to ensuring that grievances and disciplinary rulings are examined in a fair and completely neutral manner.
[Translation]
Our committee plays an important role in maintaining public confidence in the RCMP and ensures that its respects the law and human rights in labour relations. Our committee's mandate is to review grievances, disciplinary and discharge and demotion cases referred to it by the RCMP and then present recommendations to the RCMP commissioner.
[English]
We conduct a full, impartial review. In all grievance, discipline, discharge and demotion matters referred to it, the ERC bases its review on the record before it. This includes all of the original documents, submissions of the parties and the decision made.
In this respect, we operate somewhat like a Court of Appeal as we only conduct our review on the record of evidence. However, unlike an appeal court, our reports are not rulings, only recommendations; our word is not law.
We prepare recommendations and findings that are given to the parties, as well as to the commissioner of the RCMP. The law requires that the commissioner consider our recommendations, but he is not bound by law to accept them. The RCMP commissioner has the final say in all cases.
Historically, the Commissioner of the RCMP's acceptance rate of ERC recommendations is in the range of approximately 85 per cent. If the commissioner decides not to follow them, the commissioner is required to explain, in writing, the reasons why our recommendations were not followed.
[Translation]
Workplace harassment cases, whether it is sexual harassment or another type, are a major concern for each of us.
[English]
In its 25-year history, 117 cases related to harassment have been referred to the ERC for review. Of those, 7 cases related to sexual harassment. These 117 cases dealt with such subjects as alleged abuse of authority, on-the-job pranks and peer-to-peer bullying, as well as sexual harassment.
I would like to stress that it is the ERC's view that workplace harassment of any kind must be dealt with in a manner that is both timely and fair. Those with the responsibility for dealing with complaints need to be fully trained, and there must be consistency in how the complaints are managed across all regions of the country.
We believe the focus should be on prevention, early detection and intervention as a way of limiting all harassment.
To most of us, the RCMP is a national institution and one of the world's best-known police forces. For the thousands of regular members, civilian members and public servants, it is also their workplace.
We know that the quality of the work environment has a direct impact on the quality of the services rendered. For 25 years, the ERC has added objectivity and clarity to the resolution of workplace disputes within the RCMP. Now more than ever, an independent, outside vision is crucial to assuring both management and members that the internal processes are solid and to assuring Canadians that the RCMP takes its employer responsibilities seriously.
[Translation]
Thank you for your attention and I am now ready to answer your questions.
[English]
The Chair: Thank you. That was very clear. Just to focus in on this, anyone can come? If a decision has been taken, or perhaps not taken, inside the organization, a person involved can come to you?
Ms. Ebbs: No, it is not quite like that.
The Chair: Okay. A decision has to be taken at some level?
Ms. Ebbs: We are a labour relations body, so in grievances, discipline, discharge and demotion, there has been a process that has gone on internally, and a decision has been made. At that point, that decision can be appealed to the commissioner. The commissioner is then obligated by law to refer the case to us, and we do our analysis and provide findings and recommendations.
The Chair: If something did not qualify as a grievance or was rejected at an earlier stage, can they come to you?
Ms. Ebbs: There are types of grievances that are referred to us, and, if there is an appeal of those grievances, then the case is referred to us.
[Translation]
Senator Dallaire: You say you received 117 complaints related to workplace harassment in the 25 years the RCMP External Review Committee has existed?
Ms. Ebbs: Yes.
Senator Dallaire: How many have there been in recent years?
Ms. Ebbs: Regarding workplace harassment cases, we receive more complaints today than five years ago. I don't know if we have the exact answer to your question.
Senator Dallaire: I just wanted to know the trend. How many cases in total have been reviewed during the committee's 25 years of existence?
David Paradiso, Executive Director and Senior Counsel, RCMP External Review Committee: About 835.
Senator Dallaire: About 835; so about one eighth concern harassment cases; and there has been an increase in recent years in this area.
[English]
In the analysis of the complaints that you do, do you actually hear the people who are bringing forward the problem, or is it a paper analysis that you do with regard to studying the dossier?
Ms. Ebbs: The process is that when a file is referred to the committee, we get the complete record. That includes everything that has taken place at the first level — written submissions of the parties. Generally speaking, we conduct the review based on the review of the file without a hearing. The act allows for the ERC to hold a hearing if it feels that is necessary. However, historically it has been very rare for the ERC to use that power to hold a hearing because up until now the records we have received from the RCMP are very thorough and there is really no need for any additional information.
Senator Dallaire: I have one last question because we have some number crunching here. Of the 117 cases that you have had, how many of the recommendations you have given have not been accepted by the commissioner?
Mr. Paradiso: I do not have that at my fingertips, but it is something we can find.
The Chair: How did that compare to the 85 per cent you said that were accepted?
Ms. Ebbs: That is in relation to all of our cases, so in relation to those 117, we could definitely find out for you. We do not have it today.
Senator Plett: I am sorry that I did not quite understand the explanation to the question the chair asked. How do you get the cases? Are there different ways of getting the cases? I heard you say that if there is an appeal on the commissioner's recommendation or decision, you then hear the case. Is that correct? What are the different ways you get cases?
Ms. Ebbs: I will use a grievance related to harassment as an example. Once a decision is made internally on whether a harassment complaint is founded, either the person who made the harassment complaint or the person who has been accused of harassment could grieve that decision. There is a grievance and they will look at what happened during the harassment complaint process and decide whether they agree or disagree with what is done. The parties then have the possibility of appealing the decision made on the grievance to the commissioner. It is at that stage that the case would be referred to us.
There is no discretion. The act says a harassment grievance will be referred to the ERC. We will conduct our review and provide findings and recommendations to the commissioner that he is bound to consider.
Senator Plett: He is bound to consider, but does not have to accept?
Ms. Ebbs: He does not have to accept, but if he does not, he has to give his reasons why.
Senator Plett: That is the number you will get for us as to how many he accepted?
Ms. Ebbs: Yes.
Senator Plett: At the end of your presentation you said it would be good to detect or to have early prevention mechanisms in place. Could you elaborate? Who would detect possible harassment? How do you see this happening?
Ms. Ebbs: I have listened with interest to the appearances that the commissioner and other members of the RCMP have made to talk about some of their work in improving the systems that exist right now. The cases we see are obviously difficult because they have not been resolved, have gone all the way through the different steps and ended up in appeal. I see that the longer it takes to resolve a dispute like that, the harder it is to ever get a resolution that is acceptable to the parties. That is why we say that.
Even the policies that exist now really stress that as soon as there is an issue with workplace harassment, it needs to be dealt with right away. It is usually dealt with by the more immediate supervisors. The person who feels harassed has a responsibility, I guess you could say, to make their concerns known, and then hopefully there are mechanisms in place that allow those parties to sit down and try to work it out informally before it would get to the point of a more formal process.
Senator Plett: Okay. I think I understand. The detection is that as soon as someone has suggested they have been harassed, something happens very quickly as opposed to someone seeing potential harassment coming forward?
Ms. Ebbs: Actually, in the Treasury Board policy, it does say that managers are supposed to be aware of what is going on. Even if there is not an actual complaint made, if they see some kind of workplace harassment they are supposed to try to deal with it.
Senator Plett: Perhaps this is not out there, and if it is, you can provide us with a number. We have said that the RCMP is an organization where there is a chain of command. It is not your typical office situation. Sometimes things could be perceived as bullying — and certainly would be bullying in a regular office — but may not be in the RCMP. Do you have a statistic as to how many cases you would get where you would perhaps determine that it was not bullying, but rather a sergeant giving a constable an order that was perceived as bullying?
Ms. Ebbs: I do not have those specific numbers. Those would be cases where we would have recommended that the commissioner find the allegation of harassment was not established or unfounded. I do not have numbers for that. However, I would say that is a very important reason, when there is an allegation of harassment, why it should be studied very thoroughly and that the whole context is crucial for the decision makers to understand when making a decision about harassment.
Senator Mitchell: This is such an important issue, and you have really captured some of its consequences and implications. I am interested in knowing what constitutes a grievance. When Sergeant Ray was charged or accused of exposing himself, for example, I know there are tribunals. That went to a tribunal that was reviewed by three officers. Now, would that ruling be eligible for appeal to the commissioner?
Ms. Ebbs: Thank you for that question. It is a bit of a complicated system. Our mandate covers different types of labour relations decisions. What you are referring to is the discipline process, where the RCMP feels that there has been misconduct on the part of a member. There is a very formal process that is instigated, which ends up in a hearing before three adjudication board members. That decision, if appealed, comes to us for our findings and recommendations before the commissioner makes his decision.
That is different from grievances. Grievances that could be related to harassment are a whole other process.
Senator Mitchell: However, they could be appealed as well?
Ms. Ebbs: Yes. There are certain categories of grievances that are referred to us and they include harassment grievances.
Senator Mitchell: Let us say, in the case I mentioned, that the commissioner did not like the outcome and he thought the man should have been fired, could he appeal that to you, or does it have to be appealed to him before he can appeal it to you?
Ms. Ebbs: No, the way the steps work is that the decision is made by the adjudication board. If the member decides to appeal, it is an appeal to the Commissioner of the RCMP, but as the middle step, we provide our findings and recommendations to the commissioner. When the commissioner makes his decision, it is the final step in the process.
Senator Mitchell: Perhaps I did not explain it properly. There is a ruling by the tribunal and this person was not fired. It is breathtaking that he was not, but he was not. He is not going to appeal it because he got off. There is no person on the other side, the person who was there when he did this. Therefore, she would not have had status to appeal it to the commissioner. It is done.
Maybe the commissioner says, ``I asked you to fire him,'' which he says he did. Could he not then say, ``I am going to take it and I will appeal it to your group''?
Ms. Ebbs: No.
Senator Mitchell: He could not do that?
Ms. Ebbs: No.
Senator Mitchell: In this case, there would be no one to appeal it to because he got off.
Ms. Ebbs: Basically that is true, except I would add that, at the first stage, when the adjudication board makes their decision on whether the allegation of wrongdoing is established, if the board finds that the allegation is not established, the appropriate officer does have the option of appealing a decision that an allegation is not established.
The member can appeal a decision that the allegation was established, and the member can appeal the sanction.
Senator Mitchell: We have been told that Bill C-42 will give the commissioner a power he did not have before, which would be to fire people. Who is firing people now? Clearly, you get referred to you cases of people who were fired who did not want to be fired, so why can anyone fire but not the commissioner?
Ms. Ebbs: I am not sure in what context the commissioner made that statement. I really cannot respond to it.
Senator Mitchell: Can he fire people?
Ms. Ebbs: I am familiar only with the discipline system. The discipline system requires a process where the member has a right to be heard and a right to defend himself or herself before a decision is made. Then the decision is made by the adjudication board, and that can be appealed to the commissioner.
I am not sure in what context the commissioner is talking about firing people.
The Chair: We were talking with him at an earlier stage about Bill C-42, and he was talking about how difficult it was for him because of the process that you have now described. It is not like he can wake up in the morning and say, ``Okay, you are out of here.'' There is a process.
[Translation]
Senator Boisvenu: If I understand your presentation correctly, you come in at the end of the process, right?
Ms. Ebbs: Yes. At the second level, if you will.
Senator Boisvenu: After you, really, there are not any other appeal or complaint management bodies.
Ms. Ebbs: No. The commissioner's decision is the final decision internally. After that, a member can turn to the Federal Court, but the committee is the last step internally.
Senator Boisvenu: Correct me if I am wrong, Madam Chair, but our committee's goal is to improve the process, right?
You are at the end of the tunnel or the process, so you have seen all of the stages preceding the complaint or the crisis, all of the management stages. You have seen them because you come in at the end of the process. And you have been the chair for a number of years.
I did not hear any recommendations in your presentation. You provide statistics on the situation. Do you have proposals to make to improve the complaint management process, given that you come in at the end of the process and that you have seen it for years? Where are there shortcomings or flaws in the process?
Ms. Ebbs: I think what is essential is to have the resources and the means at the beginning of the process to try to help the parties resolve their dispute informally, without there being a complaint or a formal process. I think that should be the priority. In addition, I think it is important to have a training system.
Senator Boisvenu: When you talk about resources at the beginning of the process, do you mean that the initial procedure for an employee who complains or the initial procedure for a complaint is not effective or good enough and that it should be looked at again?
Ms. Ebbs: No. What I mean is that from the start of the process, if a member believes that someone else is a victim of harassment, trained people could help that person understand is or her options and direct the member toward an informal dispute resolution process. That is what I mean. Resource persons could be there for the member who wants to know what he or she can do in that situation.
Senator Boisvenu: That was my question to the deputy commissioner last week. I wanted to know if, when an employee wants to file a complaint, there is an initial procedure to encourage and support the employee or if the employee is more or less left on his or her own?
Ms. Ebbs: According to existing policies, each department, including the RCMP, is supposed to have resource persons to inform members of their options and help them. That currently exists at the RCMP. But I think that is what he wants to improve. It is one of the parts of the process leading to an improvement.
Senator Boisvenu: The process has existed for a long time — 1986, so nearly 25 years.
Ms. Ebbs: Twenty-five years, yes.
Senator Boisvenu: Has there been an assessment of RCMP staff's degree of satisfaction with this model? Have employees been able to contribute to proposals or recommendations?
Ms. Ebbs: We have not done a survey, if that is what you mean.
Senator Boisvenu: The process is to manage staff complaints. We should know their point of view. Do they find the system satisfactory and do they have recommendations to improve it? It should not just come from above.
Ms. Ebbs: I understand your question. Every year, we meet with some members of the RCMP, especially members' representatives, and with the commissioner and managers. And from those meetings, we know that, for the most part, members are satisfied and find our role in the process to be important and crucial. We have not done a survey as such because we are too small of an organization to be able to do something like that.
[English]
The Chair: That is the minimum of once a year; is that what you are saying?
Ms. Ebbs: When we meet? There is nothing written in stone, but we do that, yes. We feel outreach is very important.
[Translation]
Senator Nolin: Thank you to both of you for having accepted our invitation. I would like to come back to Bill C-42, to which my colleague, Senator Mitchell, just referred. First, were you consulted on the drafting, the consideration and the development of the bill?
Ms. Ebbs: No.
Senator Nolin: Not at all?
Ms. Ebbs: No.
Senator Nolin: You saw the final version when it was tabled in Parliament.
Ms. Ebbs: Yes.
Senator Nolin: I assume you have since read it?
Ms. Ebbs: Yes.
Senator Nolin: The purpose of this bill is to — let me read a short text:
. . . simplify the RCMP's discipline and grievance systems. In the case of disciplinary files, managers [. . .] would be given a wider range of options to sanction members immediately.
My colleague, Senator Mitchell, spoke to it by referring, among others, to the commissioner himself.
In severe disciplinary offense cases referred to the RCMP's internal conduct board . . .
I think it would be a new body that would be created by Bill C-42 —
. . . only cases concerning dismissal would have a formal hearing.
My first question is simple. What are the possible consequences of the passage of Bill C-42 on the number and your work? In other words, I am basing my questions on when we formally have Bill C-42. The work we are doing within the mandate given to us by the Senate and Bill C-42 are likely to be very similar, which is why the questions focus both on the study we have been asked to do and Bill C-42.
Ms. Ebbs: Thank you. To begin, it is hard to tell. In your question, you raised several important elements, including, first, the number of cases we will have under the C-42 system, and also the type of case.
As you say, today there are hearings for disciplinary cases. The hearing is very formal. We even receive a transcript of those hearings. We therefore have a complete file concerning facts and submissions. That is why it is rare for the committee to want to hold its own hearings because they have all of the information they need on the case.
With the new system, files will be received in which decisions concerning discipline will have been made without a hearing.
Senator Nolin: Is that what we call informal files or measures?
Ms. Ebbs: No. Even in formal situations, there can be cases in which decisions concerning discipline will have been made without a hearing. In those cases, we will have to evaluate the information we receive to determine whether we have all of the necessary information. Otherwise, we may have to hold hearings at our level.
Senator Nolin: Your current role could extend to a much broader investigative role than the one you play currently.
Ms. Ebbs: Yes, that is possible.
Senator Nolin: Would it still be based on an appeal filed before the commissioner?
Ms. Ebbs: Yes.
Senator Nolin: In other words, in the disciplinary process, your role or your position will stay the same.
Ms. Ebbs: Yes.
Senator Nolin: And it will be to simply make recommendations to the commissioner?
Ms. Ebbs: It is still at the appeal level. Is that what you mean?
Regarding the number of cases we can receive, for example, if we are talking about grievance cases concerning harassment, we know that the commissioner has said that he expects to receive more complaints in this area. If they have a more effective process in which members have more confidence, it is possible that there will be more complaints, and if there are more complaints there will be more appeals that will be referred to us.
Senator Nolin: I want to come back to Senator Boisvenu's question regarding asking for information or opinions from staff members. Do you receive informal correspondence from RCMP members under division representatives, real members, those who, at the end of the day, you hear from when you have a complaint? Do you receive correspondence from those people? Without naming names, what do those letters tell you about your process?
Ms. Ebbs: It is mostly in the context of our files, because in the case of grievances, members always submit their representations to us.
Senator Nolin: I really mean correspondence outside of your traditional complaint and hearing process, people who write to you, members of the RCMP who tell you: ``I like the work you do. This file concerns one of my colleagues.'' Do you receive that type of correspondence?
Ms. Ebbs: It is pretty rare, but we have examples.
Senator Nolin: Is it positive?
Ms. Ebbs: Yes, for the most part, but it must be said that in general, when we receive that kind of correspondence, it is to complain about the fact that it takes too long to obtain a decision. It is one of the members' concerns as well as one of our concerns.
[English]
The Chair: That is great. That is what I was getting at, at the beginning. Sometimes even though they are outside the process they will still send you the message.
Senator Campbell: For over 25 years, there are 117 cases of harassment. Why are there so many others out there that have not been reported to you or have not come to you? If I felt I was being harassed, why would I not take advantage of the ERC?
Ms. Ebbs: That is a very good question. I do not know the answer, but I can speculate as to parts of the answer.
First, the ERC process, as it exists now, is at the appeal level of the grievance, so a lot of steps happen before it can be referred to us. It could be that there are cases of complaints that are started and settled at an earlier stage, and therefore they would not come to us, or there are cases that are not settled, but the people have lost faith in the process and have given up because it was taking too much time. That definitely is a possibility as well. The one also that concerns me is that we know there are people who felt that they were being badly treated, who they felt they were being harassed, and they did not even make a complaint because they have that little faith in the process. I think that is very unfortunate.
Senator Campbell: Do we have any idea what the real numbers are on this issue, of those that were settled informally? Obviously, you cannot know those that just gave up, but of the ones that were settled informally, do you have any idea of the numbers we are talking about?
Ms. Ebbs: We are very limited in our window because we have the cases that come to us at the appeal level. I think that was one of the things that I remember that Mr. McPhail of CPC recommended, that the RCMP try to get more information on those levels, but we definitely are not in a position to know.
Senator Campbell: Would you have gotten the case of the sergeant from Alberta who was transferred to British Columbia?
Ms. Ebbs: If I am right in my understanding, that would have been a case where the allegation would have been found to be established, and the sanction would have been whatever happened.
Senator Campbell: He would not appeal?
Ms. Ebbs: He would not have appealed.
Senator Campbell: Let us go to the person that he was harassing.
The Chair: Can we just make sure that we are staying away from specific cases?
Senator Campbell: If I am the one who is being harassed and I am not satisfied with the actions that have taken place by the mounted police, where do I go? If I am the aggrieved, where do I go?
Ms. Ebbs: At the stage of the complaint, if the person who lodged the complaint is not satisfied with the decision at that level, then there is the grievance and then the grievance appeal to the commissioner, so that would be the route that person would take. There are also other options for people who feel harassed. If it is a matter of a human rights claim, there is the Human Rights Commission, and there are also the courts.
Senator Campbell: What happens if someone comes to you with a complaint of harassment, but, in fact, it is a criminal action? It goes beyond harassment. There is a possibility that this could be a criminal action. What is your involvement in any of that?
Ms. Ebbs: That would usually be something that would be discovered at the internal stage before it ever got to us. By the time the case came to us, that kind of issue would have been recognized and settled.
The Chair: They would have opted for another course of action.
Ms. Ebbs: Yes. ``Settled'' means that at the stage where the person made the complaint to begin with, or approached the supervisor or approached the staff relations representative, he or she probably would have been advised at that stage that it was an option to make a criminal complaint, and that would be a totally different process.
Senator Nolin: Therefore, it means that a dossier can be not in the process that could lead to you, but not being legally settled. It can be following another route. That is a possibility.
Ms. Ebbs: At the same time, you mean?
Senator Nolin: No, not at the same time. A file can start the grievance process, and then, for any kind of reason, can stop being in the internal process and be moved to the criminal, external process. That could exist.
Ms. Ebbs: Yes.
The Chair: It could move to the human rights, which is a separate stream as well.
Ms. Ebbs: Sometimes different processes are operating at the same time.
Senator Nolin: Even at the same time?
Ms. Ebbs: Yes, sometimes.
Senator Day: Thank you for being here. I want to establish, first, we have used the term ``harassment'' without saying ``sexual harassment.'' Are we talking only about sexual harassment in all of the various items that you have discussed, or could there be psychological harassment involved as well?
Ms. Ebbs: When I am talking about 117 cases, those are by far cases not dealing with sexual harassment. The majority of the cases we get are more along the lines of abuse of authority, workplace pranks, bullying and that kind of thing. We have had very few cases related to sexual harassment.
Senator Day: Very few are actual sexual harassment complaints?
Ms. Ebbs: Yes.
Senator Day: You do your review that you have described to us and provide the benefits of your review to appeal, if you want, to the commissioner, and he or she is not obliged to implement your recommendations but must consider them, is obliged to consider them. Have I got that right so far?
Ms. Ebbs: Absolutely, yes.
Senator Day: Are your recommendations made public?
Ms. Ebbs: We have a website, and summaries of all of our recommendations over the 25 years are located on that website, available to members, to RCMP management and to the public.
Senator Day: The recommendations that you send to the commissioner will be made public, and if the commissioner decides not to implement your recommendation, then that decision will be made in writing and published as well?
Ms. Ebbs: Right now our website does not have the full decision. It has a summary. On our website we also have summaries of the decisions that the commissioner has made after our recommendation.
Senator Day: The commissioner would make something in writing, or do you do that?
Ms. Ebbs: There are written decisions both at the ERC stage and at the commissioner stage.
Senator Day: You handle about 33 appeals per year, approximately?
Ms. Ebbs: Yes.
Senator Day: That has been roughly the same throughout?
Ms. Ebbs: It goes up and down because of the nature of the workload, but generally speaking, on average.
Senator Day: You are a full-time chair of legal formation, legal background?
Ms. Ebbs: Yes.
Senator Day: Mr. Paradiso, you are the executive director?
Mr. Paradiso: Yes.
Senator Day: You also have a legal background?
Mr. Paradiso: Yes.
Senator Day: Four lawyers work with you on a full-time basis plus one part-time lawyer; is that correct? Do I have my facts right here?
Mr. Paradiso: Currently there are four counsel who assist the chair in the analysis and no part-time counsel, and two of them are term positions and two of them are permanent, indeterminate.
Senator Day: All four are in full-time positions?
Mr. Paradiso: Yes.
Senator Day: When you do a review or an appeal, there is no counsel involved? You are just reviewing the documentation that came from the grievance, or are legal counsel involved to make submissions to you on behalf of various interested parties?
Ms. Ebbs: As you said, I am the chair and the only person with authority to make the findings and recommendations. There is only one GIC appointee. When I am doing findings and recommendations, I am assisted by the counsel. They will provide me with analysis. There are usually different legal questions involved in an appeal, especially the discipline appeals, and so they will help me. They will assist me with looking at those issues and making informed findings and recommendations.
Senator Day: I am trying to draw a parallel with an appeal to a Court of Appeal.
Ms. Ebbs: There is no hearing process. I have the record, so I will be basing myself on a study of the record, but I will also have assistance from our legal counsel. We will have submissions from the parties, and I consider those submissions, but there is no arguing at that level.
Senator Day: No argument by outside legal counsel?
Ms. Ebbs: It is only in writing in the submissions.
Senator Day: I think you said you review the record.
Ms. Ebbs: Yes.
Senator Day: You are looking at what came from the grievance and the parties?
Ms. Ebbs: I look at everything that happened in the grievance, plus the submissions of the parties, why they have appealed. I have those also.
Senator Day: I understand the process better now. What is your total budget per year?
Mr. Paradiso: The ERC has an A-base budget of $790,000.
Senator Mitchell: I think there are two different processes. In the case of the tribunal, there would not be two parties. There would just be the person who has been accused of exposing himself and the person to whom he exposed himself would not be appearing before the tribunal. There is not a prosecution before the tribunal. There would not be another party to refer to you. There could be all kinds of cases.
I know another case, for example, where, after the sexual encounter, the senior person is not fired, 10 days' docked pay, and the woman is fired. He is before a tribunal. There will be no one on the other side who would be unhappy with the fact he only lost 10 days' pay and appeal to you. It seems to really skew it.
Ms. Ebbs: Actually, the discipline process is very adversarial. There are two parties, and it is very court-like. On the one side is the member who has been alleged to have committed some misconduct, and on the other side is the appropriate officer who initiated the whole investigation. When the three-member adjudication board meets, there is a member who is supported by a legally trained member representative and there is the appropriate officer who is also assisted by a legally trained person.
Senator Mitchell: Would that be an SRR, an investigating officer?
Ms. Ebbs: No. That is a different group of people. These are legally trained people who represent the member on the one side and the appropriate officer on the other. It is very adversarial actually.
The Chair: Senator Mitchell, other people have tried to intervene on this issue.
[Translation]
Senator Boisvenu: What is the percentage of complaints that go to your committee?
Ms. Ebbs: The percentage of complaints?
Senator Boisvenu: What is the proportion of complaints that are not resolved within the organization and that go to you? Is it half of the complaints made? A quarter?
Ms. Ebbs: It is hard for us to know because we are independent of the RCMP. It would be the RCMP that could answer your question.
Senator Boisvenu: What is the length of the process from the time when the member files a complaint to when the complaint goes to you and you deliver a decision?
Ms. Ebbs: Unfortunately, a lot of time can go by before the member receives a decision.
Senator Boisvenu: Months or years?
Ms. Ebbs: Years. The member presents a complaint, receives a decision concerning the complaint, and after the grievance a level-one decision is delivered. Then there is the decision's appeal before the commissioner and, at the same time, there is an analysis that is done before the committee's report stage. The whole process can take years.
Senator Nolin: I would like to come back to the question of the commissioner's decisions following your recommendations. I understand that you publish a summary of your recommendations. If I understand correctly, 15 per cent of commissioner decisions have not reflected your recommendations?
Ms. Ebbs: Yes, that is what we say.
Senator Nolin: If our committee wanted to obtain those files to examine each of the 15 per cent and read the complete recommendations you provided to the commissioner, could we obtain them?
These are recommendations that, clearly, were not followed.
Mr. Paradiso: Of course, but they would be redacted copies.
Senator Nolin: I completely understand. You understand that it is not the names that interest us, but rather that we want to know the recommendations you made and why the different commissioners did not accept them.
Second, you do not have to answer, but there is a new commissioner and there was another one before him; are some commissioners more inclined to accept your recommendations while others are less inclined? Or is there an average?
Ms. Ebbs: Since in most cases, the commissioner, no matter the person, endorses our recommendations, it would be difficult for me to establish a trend.
Senator Nolin: That is why I asked you the question about the 15 per cent, to find out why a commissioner did not accept those recommendations. We will examine that in due course.
[English]
The Chair: Let me go to the larger question here. Is this right on point?
Senator Day: It is a matter of process here. I was asking some questions and then there were two supplementary questions. Did I use up my time?
The Chair: You actually have, yes. You can have one small one or you can wait until second round.
Senator Day: I did not mean to interrupt you. I just wanted to know where we were in the process. I got lost.
The Chair: You were 10 questions in.
Senator Day: Thank you for my colleagues.
The Chair: I do want to hear this. It is important that Senator Nolin has got at this, but when we invited you as guests, we wanted to hear from you on Bill C-42. I know you have spoken to some of the issues around that, but what is your view on this piece of legislation as it now stands? Do you think it will go a long way to dealing with these issues or not? Do you think it gives the commissioner the kind of power he needs? How does it impact your process?
Senator Dallaire: Before you answer, I would like to intervene. This is the second time, Madam Chair, that we speak about Bill C-42. We know there will be implications, but we do not have that legislation.
The Chair: That is right, but it is public. It is pretty key to this part of the discussion.
Senator Dallaire: I would like to finish my point. It is not before us. It is not even out of the house yet, so we do not know whether or not there will be amendments at third reading. Then it has to go through our process before it comes to a committee, including us. It might not come to us; it might go to Justice. We are not really prepared for Bill C-42, and I am not sure whether or not it is procedurally correct to be analyzing a piece of legislation that has not really come to us. I would like us to concentrate, if you do not mind, on the mandate we did get, knowing full well that Bill C-42 will affect it and maybe it will come out in time for us to be able use that material at that time.
The Chair: I will just say that we have heard from the commissioner twice on this topic, even though that legislation was not before us. We asked his opinion of that and we have asked others their opinion of it. As it is so central to what we are saying here about process — your own members raised the issues as did others on my side — I am trying to give a clear window to our witnesses to actually respond because it has been referred to by several people in terms of questioning. This will be brief and it does not preclude any discussions we have when the legislation comes before us.
Senator Dallaire: Let me make sure that, as with our previous witness last week, if Bill C-42 comes to us, we will call these witnesses back for that.
The Chair: That will be the subject of discussion of the committee; that is right.
Can we go ahead, please, and hear from you? Thank you.
Ms. Ebbs: From the perspective of the ERC, we feel that it is very important that Bill C-42 highlights again the importance of an external review component to the labour relations processes in the RCMP. I also think that it will allow the flexibility that is required for the RCMP to renew, revitalize and reform their internal processes, and I think that streamlining the fairness will help to restore some confidence on the part of members and the public.
The Chair: You have noted in your comments the importance of timeliness, training, ongoing education and oversight. Does it give you some satisfaction there?
Ms. Ebbs: I think there is real momentum right now to make some important changes that should certainly help to restore confidence, and I am excited that the ERC will be part of this new process.
The Chair: Mr. Paradiso, do you have some comments?
Mr. Paradiso: I have nothing in addition to what the chair has said.
The Chair: Thank you.
[Translation]
Senator Dallaire: Within the process, you deal with civilian members and uniformed members.
Ms. Ebbs: Yes.
Senator Dallaire: What is the proportion from the two categories for the 117 complaints, as well as for the 835? Are there a lot more complaints made by uniformed members than by civilian members? One category represents two thirds and the other one third, but are the proportions the same?
Mr. Paradiso: We have no statistics on that.
Senator Dallaire: Is the existing process the same whether you are a civilian or a uniformed member of the RCMP?
Ms. Ebbs: I would like to clarify something. There are three categories of employees in the RCMP: there are regular members, civilian members and public servants. For public servants, there is a completely different system.
Senator Dallaire: I know. I am talking about regular members and civilian members. Is it the same process for those two categories?
Ms. Ebbs: Yes.
Senator Dallaire: Based on your experience, do you think that a similar process meets the needs of these two different worlds in the RCMP, those in uniform, whose group is of an operational nature, and the civilian members of the RCMP? Do you believe, regarding those two entities, that your process really addresses their concerns? In my opinion, they live in two different worlds.
Ms. Ebbs: It is a question I have not really thought about. I have never had difficulty applying the system as it exists to civilian members and regular members.
Senator Dallaire: You provide the final decision, but to arrive at that point, one must nevertheless go through a whole process. It seems to me that there are two ways of seeing work at the RCMP. These people work differently, in my opinion. Has that not been given some thought?
Ms. Ebbs: No.
[English]
The Chair: Senator Campbell, a supplementary to this or on the second round?
Senator Campbell: I am on the next round.
Senator Day: Let me say first with respect to the legislation that may reach the Senate someday, Bill C-42, I am astounded that your answer to Senator Nolin was that you were not consulted beforehand with respect to this legislation, with your knowing the process so well and having been involved so long. That is a comment, and you have already told us that you were not.
I want to go back to the question I was asking, because I am still trying to understand the process. At the grievance level, first, I think I understand what happens when it gets to you, but what is coming to you is what I am looking for now.
You indicated that the process is quite adversarial. Do you recall the comment that you made? Then we went off on some other tangent. The adversarial part would be the member, who is grieving, plus, as I think you said, the appropriate officer who would be asked to investigate.
Ms. Ebbs: That is in relation to discipline, not grievance. In the discipline cases, that is the process.
Senator Day: With respect to grievance, can I take it that it is equally adversarial? Different points of view will be brought out to flow, if there is an appeal, to you, through the commission, of course?
Ms. Ebbs: The grievance process is quite different, but there are two sides that are presented. There is no hearing. It is all done by written representation. Normally it is a decision, for example. We have other grievances that are not related to harassment. We have them related to relocation expenses, travel expenses, isolated post and that kind of thing. Using that as an example, the one side would be the member who has grieved a decision related to relocation expenses, and the respondent would be the person who made the decision about the relocation expenses. In the grievance process, you have two sides that are presenting the different points of view in written representations, and those are taken into account in the decisions.
Senator Day: I understood you to say that there are legally trained personnel.
Ms. Ebbs: In the discipline process, not in the grievance process.
Senator Day: It is the discipline side only that we are talking about.
Ms. Ebbs: Yes.
Senator Day: The 835 cases in the last 25 years?
Ms. Ebbs: They are a combination of grievances, discipline, discharge and demotion.
Senator Day: In each of those, the decision could be appealed to the commissioner, and then the commissioner would ask for your assistance? It goes to you and your group in each of those?
Ms. Ebbs: In all of those cases, a decision has been made, at the first level, internally, and that case has been appealed to the commissioner. Before the commissioner makes the decision, we provide findings and recommendations to the commissioner.
Senator Day: There is no outside legal counsel representation at your level?
Ms. Ebbs: In discipline, there would be.
Senator Day: There would be.
Ms. Ebbs: Yes.
Senator Day: Explain the difference, then. How does that happen? That is what I was looking for. We understand the normal Court of Appeal process — to isolate and ensure that the various points of view are made known to the decision maker or the person making the recommendation to the decision maker. Can you explain the process in your case?
Ms. Ebbs: In discipline cases, as I said, it is a very formal process. The member is represented by a legally trained RCMP employee called a member representative. The appropriate officer would have the appropriate officer representative, who is also legally trained. When the decision of the adjudication board is made, if either side decides to appeal, they do so with the assistance of those legally trained representatives.
In the grievances —
Senator Day: Could we just do the adjudication board appeal first? Once it gets to you, it is just in writing?
Ms. Ebbs: Yes.
Senator Day: There is no legal counsel?
Ms. Ebbs: The legal counsel can have assisted in the writing of the submissions.
Senator Day: However, they do not appear before you or the other lawyer?
Ms. Ebbs: No, there is no hearing.
Senator Day: That is the point I was trying to get to. Thank you.
Senator Campbell: I just have one small question. When it gets to the point where the process is finished, is the officer given a choice? I have been looking at some of your appeals, and the commissioner says you have 14 days to resign. How does that match with ``You are fired''? If I resign, all of my benefits and everything that I accrue continues on. If I am fired, are they gone?
Ms. Ebbs: I will just say that, in the discipline process, you are talking about two of the sanctions that are possible. One of the sanctions is an order to resign within 14 days, in default of which the member is dismissed. The other sanction is dismissal. I really am not the person to ask about the different consequences that arise from those two decisions.
Senator Campbell: You do deal with a lot of those.
Ms. Ebbs: Yes.
Senator Campbell: You deal with a lot of them where there is an order to resign.
Ms. Ebbs: Yes.
Senator Mitchell: It has been said — and I think you have alluded to that — that you are part of the ``replacement'' for a union. The other part of that would be the SRRs. However, there are weaknesses in that. The SRRs are represented on the senior executive committee, so they are management. It is not like they have distance. The appropriate officers are within the structure. They are related to management; they are in that chain of command. You are not, but you cannot initiate. You have to wait until the chain of command asks you to do something, and then they may not listen to you.
What is your feeling about a union? Maybe what we need is a union. Every other major police force in the country has one, and maybe there is just not enough representation for people independent of the command structure.
Ms. Ebbs: I know that that is a question that is debated. I know that, in other jurisdictions, police forces are unionized. To be honest, I do not have the information on all of the choices to be able to give you an opinion one way or the other. My focus is on the system that exists now, and I think that it is crucial that there be a strong and well- respected external review component to the labour relations processes that exist in order that there be the proper level of confidence.
Senator Dallaire: A supplemental, if I may. There is a bit of a cop-out here, if I may say so, inasmuch as you have given, in your introduction, a very strong argument for what you do, how you do it, how well it seems to work and how essential you believe it to be in the current system. In the number of years you, or colleagues before you, have been there, have you ever been queried on whether that system of which you are a part, although external, should be reviewed with regard to whether there is another system that might be more effective, overall, than what exists now?
The Chair: We will leave it at that because we are out of time. Please answer that.
Ms. Ebbs: Only in the context of meetings like this, where we can pay tribute to what we do and what value we find in our work, and then other people with more knowledge of all the options can take that information and make a decision.
The Chair: Thank you very much to Catherine Ebbs, Chair of the RCMP External Review Committee, who has been on the job since 2005; and David Paradiso, Executive Director and Senior Counsel for the organization. We really appreciate your willingness to be here and field all of our questions today. Thank you so much.
Ms. Ebbs: Thank you very much.
The Chair: We will go into committee business in camera.
(The committee continued in camera.)
(The committee continued in public.)
The Chair: Ladies and gentlemen, we are back. What we would like to do at this point is put forward two votes. Gentlemen, could we have a vote, please, on two different topics here?
One is the budget for travel to Washington, which has an existing order of reference, which we have discussed. All in favour?
Hon. Senators: Agreed.
The Chair: A vote then on the Subcommittee on Veterans Affairs' travel budget proposed for trips to Sainte-Anne- de-Bellevue and Charlottetown? You are proposing? You are seconding? All in favour?
Hon. Senators: Agreed.
Senator Day: These are both budgets for next fiscal year?
The Chair: Yes.
Senator Day: I think that should be on the record.
The Chair: Thank you very much.
(The committee adjourned.)