Public Safety Committee on March 31st, 2009

[The Chair, Conservative, Garry Breitkreuz]

I'd like to bring this meeting of the Standing Committee on Public Safety and National Security to order.

We are dealing with the fairly lengthy orders of the day that you have before you. I won't read them, but we would like to welcome as witnesses the Royal Canadian Mounted Police, the Canadian Border Services Agency, and the Canadian Security Intelligence Service.

We look forward to the meeting and to your testimony, gentlemen. I'm not sure who's going to go first, but I would ask you to introduce yourself and your colleagues, and maybe just give us your position within the organization.

Have you decided who would like to go first?

[Geoffrey O'Brian, Advisor, Operations and Legislation, Canadian Security Intelligence Service (CSIS)]

Yes. We drew lots and I lost, so I think I get to start.

[The Chair, Conservative, Garry Breitkreuz]

Okay, sir.

Mr. O'Brian, if you'd like to go ahead, please begin.

The usual practice is to give you approximately ten minutes and we'd hear from all of you first, and then we'll start our questions and comments after that, if that's all right.

Go ahead, sir.

[Geoffrey O'Brian]

Thank you, Mr. Chairman.

My name is Geoffrey O'Brian. I'm a member of CSIS. I am, by training, a lawyer, but I have been a manager within the service since it started.

I recognize that my appearance here today follows on that of two CSIS directors, both our current one and our former one, who appeared before the forerunner of this committee in October 2006, which I think was just about a month after the O'Connor commission's first report, its factual report with its 23 recommendations, was made public. More recently, just three weeks ago the executive director of SIRC, the Security Intelligence Review Committee, appeared before you.

Having reviewed their testimony and the questions that were asked there, I frankly didn't think it would be useful simply to repeat what they said. Instead, if you will permit me, I'd like to use this opportunity just to make one sort of general point. That is, as complex as they are, the issues surrounding both the O'Connor and Iacobucci inquiries—information-sharing, human rights, accountability—are not new for CSIS. Indeed, what we refer to as the granddaddy of all inquiries, the McDonald commission, which took place in the late 1970s and reported in the early 1980s, whose recommendations of course led to the creation of CSIS, looked at these issues in their August 1981 report.

Among their comments on the subject is the following, and here I'm quoting: “Liaison with foreign agencies raises a number of important policy concerns”, one of which “relates to the entering into agreements which may conflict with Canada's foreign policies.”

Another issue involves the need for sufficient control over information leaving this country to ensure that the rights of Canadians are adequately protected. It's in part because of the importance and complexity surrounding international information-sharing that unusual safeguards were built into the CSIS act in 1984. And I think members may know that before CSIS can enter into an arrangement with a foreign agency, under section 17 of our act we have to obtain the approval of our minister, the Minister of Public Safety, and he has to consult with his or her colleague, the Minister of Foreign Affairs. So before we can enter into an arrangement, there is an opportunity, indeed a requirement, to consider the foreign policy and human rights implications of such an arrangement and of course direct ministerial accountability, in the sense that our minister approves each proposal.

SIRC also reviews these arrangements, looking in detail at particular arrangements or particular issues under those arrangements. I think I'm right in saying that every one of SIRC's annual reports in the last nearly 25 years has examined and commented on some aspect of these issues.

For example, in their most recent report, tabled on January 27 in the House this year, SIRC noted that we had some 276 arrangements with agencies in 147 countries.

In particular, during the past year SIRC examined those foreign arrangements where there had been restrictions imposed “because of concerns relating to a country's or agency's human rights record, reliability or ability to protect information provided by the Service”. SIRC found that we had stuck to our self-imposed restrictions, and here I quote:

The Service performed well in terms of balancing the need to collect vital security intelligence information, while remaining aware of the potential problems of dealing with a restricted agency.

The same sentiment was echoed by Mr. Justice O'Connor in 2006, when he wrote in his report that “decisions about how to interact with a country with a poor human rights record can be very difficult and do not lend themselves to simple or prescriptive rules.”

These decisions “do not lend themselves”, in Mr. Justice O'Connor's words, “to simple or prescriptive rules”. In practice, what that means, I think, for CSIS is that we have had nearly 25 years of experience working under ongoing review and accountability mechanisms. It is ingrained in our culture. While we don't always agree with SIRC, or always enjoy the SIRC process, our director has noted that the system of review set up under the CSIS Act has, over time, made us a better service.

I used the phrase "over time" on purpose, because it seems to me that virtually everyone who's thought about these issues has concluded there are no simple, easy, and once-and-for-all answers. To me, that's part of the genius of the CSIS Act process, that's it's just that, an ongoing process capable of adjusting to changed and changing operational, legal, and political circumstances.

When she appeared before this committee earlier this month, the executive director of SIRC, Susan Pollak, alluded to this. She stated that her experience, or the experience of SIRC, is that

often our recommendations tend to end up being published after steps have already begun to address the issues that have been uncovered through...[our] reviews.... In other words...through the process of review, issues have become apparent on both sides and the service has already started to implement steps that will address the recommendation. By the time the recommendation is done, they've already partially or completely taken up what we've suggested they do.

Are these difficult issues? Yes. The very existence of these major commissions of inquiry, the O'Connor, Iacobucci, and, I might add, the Air India commissions of inquiry, I think are a testament to that. But we have reacted, and I think will react, to these inquiries, frankly, in the same way we regularly react to the ongoing reviews of our activities by SIRC. As well, I might add that the inspector general of CSIS reports to our deputy minister. That is, we absorb the lessons and insights they offer on how we can improve our policies and practices, including those related to information sharing with foreign states with poor human rights records.

In short, we have become accustomed to such ongoing review, and it results for us in an ongoing process of adjustment and refinement.

In looking at the comments, findings and recommendations of the O'Connor and Iacobucci commissions, I hope that my opening remarks will have provided some added context.

Thank you for inviting all of us here today. I look forward to your questions with an anxious dose of equal parts anticipation and interest.

Thank you, Mr. Chair.

[The Chair, Conservative, Garry Breitkreuz]

Thank you very much.

We'll go over now to the Canada Border Services Agency. Mr. Leckey, please.

[Geoff Leckey, Director General, Intelligence Directorate, Canada Border Services Agency]

Thank you, Mr. Chairman.

My name is Geoffrey Leckey. My current post is that of director general in charge of the intelligence directorate at CBSA.

Thank you, Mr. Chairman and committee members, and good morning.

On behalf of the Canada Border Services Agency, CBSA, I would like to thank the committee for affording us this opportunity to discuss our role in the government's response to the recommendations made by Justice O'Connor and to answer any eventual questions.

I'd like to begin with a general comment about the CBSA's role in protecting Canada's national security, which hopefully will clarify the role our agency played in the events that were examined by the O'Connor and Iacobucci commissions.

I'll explain how we work with other Canadian agencies as part of our mandate to maintain the security of Canada's borders, to fight transborder crime, and to protect the integrity of Canada's immigration programs. I'll then discuss steps we have taken since the release of the O'Connor report to improve our policies and procedures for cooperating with other agencies to counter threats to the security of Canada and Canadians, while better protecting human rights in a manner consistent with the expectations of Canadians.

Justice O'Connor identified the CBSA's role in the events surrounding Mr. Arar as consisting primarily of how we share information, particularly the lookouts we place on behalf of other agencies. With this in mind, I'd like to offer some context about lookouts and border screening, before going on to provide details of the different measures we've taken to improve the management and effectiveness of our lookout systems.

CBSA's staff, which consists of more than 13,000 employees, provides services at approximately 1,200 locations in Canada and 39 international locations. CBSA employees administer the Immigration and Refugee Protection Act, the Customs Act and more than 90 other federal statutes.

Visitors, immigrants and asylum seekers are carefully selected to prevent banned individuals from entering or remaining in Canada. This selection is an essential part of the Canadian government's commitment to ensuring Canada's safety and security.

CBSA works in close cooperation with Citizenship and Immigration Canada, the Canadian Security Intelligence Service and Canadian law enforcement agencies to prevent criminals and individuals presenting a security risk from entering Canada.

Lookouts are alerts in a system designed to identify subjects, businesses, and conveyances that may be of interest for many different reasons. Adverse information based on risk indicators or intelligence is uploaded into systems used by CBSA. This information is used to help prevent the entry of travellers who may be inadmissible to Canada and to help prevent the entry of illegal goods. The CBSA places and maintains lookouts for its own use. However, information from our Canadian partners may also be placed in our lookout database, or we may place lookouts at the request of Canadian partners, such as the RCMP, or international partners, such as Interpol.

The CBSA began a comprehensive review of its policies and procedures regarding information sharing following the release of the Auditor General's report on national security in March 2004. This review was informed by the work we did in cooperation with the O'Connor inquiry and addressed many of the issues that Justice O'Connor ultimately identified in his report.

Of the recommendations made by Justice O'Connor, those of greatest significance for the CBSA related to lookouts and the sharing of information, including recommendations regarding safeguards to prevent information from being shared inappropriately; the use of information received from countries with questionable human rights records; and the perception of racial, religious, or ethnic profiling. Our review resulted in the development of improved policy guidelines and written procedures for the use of lookouts and information sharing, including procedures that will enable the CBSA to respond immediately to situations where its information has been misused, and to prevent further misuse.

These policies and procedures have been implemented. Mandatory training for CBSA intelligence officers on policies regarding the proper use of lookouts and the sharing of information and an integrated information sharing and disclosure course were developed and began to be delivered in fiscal year 2007-2008.

A review and update of the CBSA information-sharing policy for intelligence was completed and implemented in October 2008. This policy establishes a principal basis for sharing information with enhanced safeguards and the regular and unscheduled review of lookouts for accuracy and validity. The information-sharing policy, as is consistent with previous practice, explicitly requires as standard procedure that the CBSA review all information received from outside sources to assess its reliability and to determine whether there is a possibility that the information might have been obtained by means that violate human rights.

Our policy provides guidance to all field officers in national security investigations and emphasizes that targeting and lookouts are to be based on objective risk assessment formulas. The policy makes clear the CBSA's position—again, this is consistent with previous practice—that race, religion, or ethnicity are not risk factors to be used in targeting calculations or in the production of lookouts.

A review and update of the CBSA lookout policy and procedures was implemented in November 2008. Systems changes to support the update were completed in January 2009. A process allowing our migration integrity officers who are posted overseas and visa officers of Citizenship and Immigration Canada to request lookouts from their locations overseas was added in March 2009.

The lookout policy establishes enhanced internal controls and oversight for the issuance, maintenance, reporting, and closing of CBSA lookouts. The steps I've mentioned, which have made significant enhancements to the way we share information and manage lookouts, meet our commitment to implementing the recommendations of the O'Connor report.

Commissioner Iacobucci reported on CBSA's measures mainly concerning the posting of lookouts for three individuals, at the request of partner agencies, border controls conducted by CBSA officers to support the investigation conducted by Project A-O Canada and the exchange of intelligence that was communicated by CBSA to Project A-O Canada without CBSA's consent.

These issues were raised in the O'Connor report. The measures I have described, which were taken to address the deficiencies detected in the review of our policies on lookouts, intelligence exchange and border controls, were adequate in light of the recommendations made by Justice O'Connor.

At present, CBSA information-sharing policies and practices are entirely consistent with the findings published by Commissioner Iacobucci. Our legislation, principally section 107 of the Customs Act, provides the CBSA with a principled basis on which to share information within a legal context. It's consistent with the charter and the expectations of Canadians that their personal information will be protected from unjustified intrusions.

The CBSA is committed to the Charter of Rights and Freedoms as the cornerstone of our democracy. We recognize that security measures must strike the right balance between protecting Canadians, their way of life and their freedoms, and upholding the rights and freedoms of all persons in keeping with domestic and international law.

That concludes my introductory remarks, Mr. Chair. Once again, thank you for inviting me to appear before you today.

I'll be pleased to address questions from members of the committee.

[The Chair, Conservative, Garry Breitkreuz]

Thank you very much, sir.

We'll now move over to Mr. Michaud, from the RCMP.

[Chief Superintendent Gilles Michaud, Director General, National Security Criminal Operations Branch, Royal Canadian Mounted Police]

Good day. Thank you Mr. Chairman, and thank you members of the committee for this opportunity to answer your questions about this very important matter.

My name is Gilles Michaud. I am the director general of national security criminal operations. I've been occupying that position for the last eight months.

I am accompanied this morning by Superintendent Bert Hoskins, who is in charge of our national security legislative affairs branch.

First, I would like to emphasize that the RCMP takes the findings of the O'Connor and Iacobucci inquiries with the utmost seriousness.

In the process of implementing all the recommendations directed at the RCMP that Justice O'Connor made in Part 1 of his report, the RCMP has strengthened its policies and governance framework regarding national security criminal investigations.

These enhancements have focused on relations with partner agencies, cultural sensitivity and human rights training, information sharing and central control.

We have provided the committee with a comprehensive document explaining how the RCMP has addressed each of Justice O'Connor's part one recommendations that apply to the force. Last week we invited some of your committee staff members and researchers into our office to further discuss the steps that we have taken to ensure that Justice O'Connor's recommendations help to guide the important work we do to protect Canada's national security. I believe our actions speak to the RCMP's commitment in addressing the important issues raised by Justice O'Connor and Justice Iacobucci. Indeed, O'Connor's part one recommendations are now at the core of how the RCMP conducts national security criminal investigations.

I would like to take a moment to mention some of the key areas in which, from a national security perspective, we have moved forward. In developing the government's framework for increased effectiveness and the policy on national security, we have strengthened our capacity to centrally monitor, supervise, and direct national security criminal investigations. This is achieved largely through more responsibility and accountability at all levels, in conjunction with a decentralized governance approach. This means, among other things, that our employees have a clear and concise framework within which to operate—one that ensures centralized control and monitoring of national security criminal investigations. Bolstering this framework is the fact that our employees have access to enhanced training that addresses human rights and cultural sensitivities. This training is given by respected citizens representing Canada's diverse communities and is regularly updated to reflect the current environment. The national security program's extensive community outreach activities are intended to build mutual trust and understanding between RCMP personnel and the community members most affected by national security operations.

Regarding information sharing, the RCMP will continue its policy of releasing information to relevant partner agencies, as supported by Justice O'Connor in his report. In adhering to his recommendations, we must ensure that information is shared in accordance with clearly established policies respecting relevance, reliability, and accuracy. In addition, national security criminal investigations consult with the Department of Foreign Affairs and International Trade when assessing the implications of sharing information with a country that has a questionable human rights record.

As stated in our policy, in assessing the implications of sharing information with a country with a questionable human rights record, every attempt is made to ensure there is no support or condonation of torture or other abuse of human rights. Specifically, the RCMP conducts an analysis of the human rights record of a country with which it intends to share information. This analysis is based on DFAIT annual reports assessing that country's human rights record. Reports from other human rights organizations may also be consulted. All decisions to interact with a country with a questionable human rights record are documented, including the importance of supplying or receiving such information and the implication of doing so for Canada's human rights obligations.

I would like to be clear that there is no absolute ban on the use of any information received by the RCMP. However, we do not use information whose reliability, accuracy, and relevance is suspect. Information knowingly extracted under torture would by definition be unreliable. In the real world, the challenge is to make a judgment on the known facts about whether any particular information received is the result of torture. Our policy is based on making such assessments on a case-by-case basis.

I would also like to stress that the RCMP's relationship with the Canadian Security Intelligence Service is as strong as ever. We have updated the RCMP-CSIS Memorandum of Understanding to clarify key aspects of our respective operations, and to establish procedures that help resolve problems in a cooperative manner. This has further strengthened our working relationship by instituting activities such as joint workshops aimed at clarifying the respective roles and responsibilities of the two organizations. We are committed to further changes to our national security criminal operations as we continuously adapt to the ever-changing environment.

In closing, I would like to say that public trust is essential to the RCMP's ability to respond to issues of national security. To this end, the RCMP fully supports enhanced review of its national security criminal investigations, and recognizes the important role it plays in maintaining this trust. Enhanced review, however, can only be implemented by the Government of Canada, and any questions on this issue should be directed to the Department of Public Safety.

The RCMP will work within whatever framework the Government of Canada adopts to establish the necessary oversight structures that will ensure continued transparency and accountability of our national security criminal investigations.

Thank you.

[The Chair, Conservative, Garry Breitkreuz]

Thank you very much.

In accordance with the usual practice of the committee, we will now proceed to seven minutes of questions and comments from the Liberal Party.

Mr. Kania, please.

[Andrew Kania, Liberal, Brampton West, ON]

Thank you, Mr. Chair.

I will start with Mr. Leckey, please. Regarding the 23 O'Connor recommendations, can you tell us how CSIS has actually changed its policies since those recommendations?

[Geoff Leckey]

When you say CSIS...?

[Andrew Kania, Liberal, Brampton West, ON]

Sorry. I meant the CBSA.

[Geoff Leckey]

Principally, we have updated, improved, and clarified our information-sharing policies and our policies on the issuance and maintenance of lookouts.

[Andrew Kania, Liberal, Brampton West, ON]

I'm going to ask a similar question of CSIS. What I'm wondering is if you would both be good enough to provide the committee with a letter, like the RCMP has, setting out how your policies have changed internally since the O'Connor recommendations.

[Geoffrey O'Brian]

Certainly. If you don't mind, I can take that back; I know that the director, in October 2006, spoke to a number of those. I think of the 23 recommendations--and that has become sort of a buzz phrase, if I may say--there were only six recommendations that mentioned CSIS specifically. For example, I think recommendation 13 says that we should have the yearly human rights record assessed by the Department of Foreign Affairs. That's done.

I believe that in the minister's letter, which was tabled before the committee and about which some people didn't say awfully nice things.... But if you go through it, look at the recommendations, and match them, there is quite a lot there, frankly, because I think recommendations 11, 14, and 15 all deal with information sharing. Therefore, if you address information sharing, you address three recommendations.

But certainly, if it would help the committee to have that.... There may well be some repetition, frankly, in terms of responses, depending.... But yes, if that would help the committee, I'd be happy to take that back and see if we can do that.

[Andrew Kania, Liberal, Brampton West, ON]

Thank you.

The letter you refer to is this letter of March 9, 2009, to Mr. Neve from the minister. Is that accurate?

[Geoffrey O'Brian]

That was the letter that I understand the committee.... Yes, I must admit, to be honest, that I wasn't involved and I didn't see it, but when it was mentioned before, I took the occasion to get a copy of it and take a look at it. And yes, I mean.... You'll notice that on page 2 he lists specific examples of progress. What you can do, and if it would help the committee, is that we can just tease out what each one refers to in terms of a specific recommendation, for example.

[Andrew Kania, Liberal, Brampton West, ON]

Thank you.

I assume all four panellists have seen the letter of March 9, 2009, from the minister to Mr. Neve. Is that accurate?

[A voice]

Yes.

[Andrew Kania, Liberal, Brampton West, ON]

Then I assume as well that all four of you have seen the letter of March 18, 2009, from Assistant Commissioner Bob Paulson to our chair. Have you all seen that as well?

[Geoffrey O'Brian]

I don't think I have. I'm sorry, which one is that?

[Andrew Kania, Liberal, Brampton West, ON]

It's a letter to our chair, dated March 18, 2009, from Assistant Commissioner Paulson, setting out his view of how the RCMP has complied with the O'Connor recommendations. Have you not seen this one?

[Geoffrey O'Brian]

I don't think I have.

[Andrew Kania, Liberal, Brampton West, ON]

No, that's fine. Mr. O'Brian and Mr. Leckey, I'm going to ask you both to provide the committee with your own individual letters on behalf of your organizations, setting out how your own internal policies have changed in light of the O'Connor recommendations. That's the first question.

[Geoff Leckey]

We'll be happy to commit to doing that.

In response to your initial question, the CBSA finds itself in a situation similar to CSIS's. Of the 23 recommendations, there are six that refer, directly or indirectly, to the CBSA. I could go into that in some detail now, but perhaps you'd prefer that I put it in a letter.