Public Safety Committee on March 5th, 2009

[The Chair, Conservative, Garry Breitkreuz]

Okay.

I'll come over to the Liberal Party. Mr. Oliphant.

[Rob Oliphant, Liberal, Don Valley West, ON]

Thank you, Mr. Chair.

Thank you to all the witnesses for coming today.

I was about to make a speech, but I won't. I think the work you do in two ways is some of the most important work. It's defending civil rights and ensuring that Canadians are treated fairly by the agencies you're involved in reviewing. Second, I think you build up the confidence that the public can have in those agencies, because, Mr. McColeman says, mistakes are made. It's critical for the reputation of those agencies, those services, that you do your work, so I'm in full support.

I want to thank you, Mr. Kennedy, for your candour, not only today but previously. I also want to express a disappointment that the chair of SIRC is not here. I think you're more limited, Ms. Pollak, as an employee of the agency, and I think that causes some difficulty for our committee in being able to get some of these answers. I express that concern now.

I have three quick questions. First, do you do joint investigations?

[Susan Pollak]

No.

[Paul E. Kennedy]

I am doing a joint investigation. We don't do it with each other, but it's one of the things that I think we had to do.

I have a pilot project in British Columbia, where we're doing a review of police and activities by the Victoria police force as well as the RCMP in relation to the Canada Day celebration. It's a model to show it can work, and I'm hoping to show others you can do these things.

[Rob Oliphant, Liberal, Don Valley West, ON]

But currently you do not cooperate on a joint investigation.

[Paul E. Kennedy]

That's correct.

[Rob Oliphant, Liberal, Don Valley West, ON]

This is difficult. I have constituents who may not understand. My files are thick with the number of CSIS agents who visit members of my community regularly, and RCMP officers who visit them. They don't know who to turn to. Often they recognize that the forces aren't dealing with each other, but their complaint processes aren't as well. I think it is a huge gap. I have a list of names. That will be in my speech some day.

My second point will be particularly to the SIRC representatives. Do you have any cases under way right now where you fear you may not be able to investigate fully because you cannot investigate activities of other agencies involved?

[Susan Pollak]

I'm assuming you're talking about the quasi-judicial aspect of our work.

[Rob Oliphant, Liberal, Don Valley West, ON]

Have you received any complaints where you have expressed any concern that you will not fully be able to investigate because other agencies, perhaps Foreign Affairs and International Trade, or the RCMP, or border security, may be involved and therefore you will have to limit your investigation, so the complainant will not be fully heard? Is there a case under way right now?

[Sylvie Roussel]

I don't want to avoid your question, but the committee does not comment on any of its complaint cases because under the act these investigations are supposed to be conducted in private.

Now--

[Rob Oliphant, Liberal, Don Valley West, ON]

I didn't ask about a case by name.

Do you have any concern, or has Ms. Pollak written a letter that expresses concern, that you may not be able to investigate a case because you do not have jurisdiction to investigate all the agencies involved?

[Sylvie Roussel]

Let me put it this way. When the committee receives a complaint, any complaint, the first thing it does is look into whether the complainant has met the conditions under the act. The first thing is whether or not he's written to the director, and second, whether he's received a response. If not, we can then go to the second step.

The second step is whether the complaint is trivial, vexatious, or made in bad faith. Whenever the committee does a preliminary review of the complaint, as Ms. Pollak said, we have access to all the information at the service except cabinet confidences. If there are any issues of concern or that raise questions, then the parties will be invited to comment on them. We don't prejudge them. They are simply invited to make representation on whether or not the committee has jurisdiction. The committee will then make its decision based on the act and proceed with an investigation.

[Rob Oliphant, Liberal, Don Valley West, ON]

Have either of your agencies made representation to the government with respect to adequacy of funding capacity based on legislation and the O'Connor report?

[Susan Pollak]

Post 9/11, when the so-called PSAC budget, the Public Safety anti-terrorism budget, was enacted, we did say that if CSIS was going to have its budget increased by a substantial amount then we felt SIRC would need to have something reflective of that. We did make representations. I will add that it took three years to get an increment of $375,000 a year added to our budget, which is only $2.9 million a year.

That's the only representation we've made.

[Rob Oliphant, Liberal, Don Valley West, ON]

To Mr. Kennedy, was there any representation to government to try to implement what they have said they will implement?

[Paul E. Kennedy]

I appeared before O'Connor. In each of my annual reports I request enhanced legislation, and I put up on my website, which I shared with the minister as well, a draft model of legislation that shows what it would look like.

In terms of money, Minister Day, when he was minister, helped us secure $3.7 million, which is good for two more weeks. To that extent there has been some response.

[The Chair, Conservative, Garry Breitkreuz]

Thank you very much.

Mr. Rathgeber, please.

[Brent Rathgeber, Conservative, Edmonton—St. Albert, AB]

Thank you, Mr. Chair, and thank you to all the witnesses for your appearance here today.

I have a bit of a disconnect, Mr. Kennedy, and I thank Ms. Pollak for explaining the difference between review and oversight. I think that was helpful. So am I correct in assuming that you are currently a review committee, but the O'Connor recommendations, which to some extent you subscribe to, would convert you to an oversight committee? Is that fair?

[Paul E. Kennedy]

Not really. These are very funny words. You're dealing with smoke when you deal with review and oversight.

One of the traditional things we have...you could call us an appeal body in terms of complaints. Although they talk of that as a review, it's actually an appeal function. And we both would have the same kind of review thing, which is absent any kind of complaint. The model would be that you could go and do an investigation of their files to see what's going on.

I'll give you a classic example of where that would play out. Currently, the RCMP has the power in certain instances, as all police do, to do something that a citizen cannot do because it is a breach of the law. The media call it breaking the law to enforce the law. Actually, it follows from a Supreme Court of Canada decision that authorized them to do it. That requires the RCMP to provide information and a report to the minister, and the minister tables it with Parliament to show you instances where they've used this power to engage in what would otherwise be unlawful activities in pursuit of an investigation.

There are a number of things that result in that document being edited down: it can damage ongoing investigations, human sources, and things like that. So it's fair to say that the report that Parliament gets is quite thin, a very thin gruel. You actually don't know what's going on. That would be one where I believe it would be appropriate for the review body to go in and look at what is going on, see how often it is being used, if it is being used proportionately and appropriately, that the people are properly trained, and then do a report that will not disclose any of the guts in it but will give you a third-party assurance that the powers are being appropriately used.

Absent an ability to do that right now, whenever this issue comes up there are allegations that the police and their agents are doing all sorts of horrific things. That's one where we can go in, with no complaint, but look at a program and come back and tell you, yes, it's working. In an audit function we make recommendations. Are those recommendations followed? We want to be able to go in and look at that. And this is the thing you have to be aware of: when people talk about oversight, what they mean is, as the officer is conducting his or her investigation, you're there looking at what they're doing. You'd be second-guessing, saying, well, I wouldn't get a search warrant there, or I wouldn't get a wiretap, or I would.

That's oversight. But that doesn't mean you can't sit back and look at programs that are ongoing, because some police investigations go on for years. So that's the difference. You're not telling them how to do their job. You look at it after the fact, but you should be able to test the programs and so on that are in place.

[Brent Rathgeber, Conservative, Edmonton—St. Albert, AB]

Thank you. I have a couple more questions.

You agree with me, obviously, that the role of your committee is to review complaints after the fact?

[Paul E. Kennedy]

Yes, well, the complaints clearly are from people that things happened to after the fact.

[Brent Rathgeber, Conservative, Edmonton—St. Albert, AB]

Right. I'm looking at your budget chart as it compares to the RCMP and I see that it's grown disproportionately small to the increase in the RCMP budget, and—

[Paul E. Kennedy]

It actually hasn't grown. With inflation it's less than what it started out as, but okay.

[Brent Rathgeber, Conservative, Edmonton—St. Albert, AB]

Certainly. So you're of the view that your complaints committee requires additional funds.

In answer to Mr. Holland's questions you talked about legislative deficiencies and the government so far not converting your complaints committee to an oversight committee, very simply. I want to know specifically, if you received a larger budget, and if you did in fact become an oversight committee, as was recommended in the O'Connor committee, how would that prevent a future incident like the unfortunate incident that happened to Mr. Arar? That's my disconnect.

[Paul E. Kennedy]

I'll go to the nub of your question. I won't get into the weeds about the oversight and all that kind of stuff.

The simple challenge—and I'll put it in context for you. I have 35 years in the business and 20 at a very high level in national security matters. One of the differences would be that in that particular instance, where information was shared with the American authorities to the point of a database being shared with the authorities, there were policies in place, there were caveats that were supposed to be in place, that would have prevented the activities that led to the disclosure of information and the kind of terminology that was used.

It can be a temptation, if you're in a national security area and someone says top secret or classified, that no one else is going to see it. I can tell you from many years' experience that's not the case. These are tiny time capsules and the stuff comes out, and it did come out. If you knew that someone could come in and look at your program and find out if you're adhering to those policies and procedures, you would certainly be less tempted to do what occurred in that case, which is to forget about the policies and procedures, pull the caveats off, and just do a dump of information. That would not have happened because you know someone is going to look at it. This is not an area that's in a black box that won't be looked at. That's a major difference.

Right now, there's a curtain drawn around it and no one looks in it other than the RCMP.