Public Safety Committee on Oct. 31st, 2006

[Jim Judd]

We occupy some of the same territory. CSIS has a mandate in respect of national security. Our job, among others, is to provide intelligence and information to the government on national security issues. The RCMP has a mandate, obviously, as a police organization for criminal prosecutions and investigations. Twenty-two or twenty-three years ago we were one and the same organization. In fact, there is another public inquiry just launched, headed by a former chief justice of the Supreme Court, whose task, among others, is to determine why CSIS and the RCMP did not cooperate at the time of the Air India inquiry and what should be done going forward to ensure that there are improvements in that cooperation.

It's a difficult distinction to draw for many people, the difference between what we do and what the RCMP does. In general terms, we collect intelligence and we advise the government. If there are circumstances in which we believe an activity could constitute or might constitute a criminal act, that would normally be turned over to a police organization to deal with as a criminal prosecution. In the case of Mr. Arar, there had been a CSIS investigation involving some individuals. That investigation was turned over to the RCMP in the aftermath of the 9/11 incidents and the burgeoning demands on CSIS. But the investigation involving some set of individuals, with whom Mr. Arar subsequently became associated, was then an RCMP criminal investigation.

[France Bonsant, Bloc, Compton—Stanstead, QC]

I see. Thank you.

[The Chair, Conservative, Garry Breitkreuz]

You have a little time left.

[Serge Ménard, Bloc, Marc-Aurèle-Fortin, QC]

Give me at least two minutes, because I would like to make a few comments.

Mr. Judd, I fully understand the position you explained to Laurie Hawn, and I know how sensitive it is to work for a secret organization, but I also know how necessary it is. In fact, I am in complete agreement with the views expressed about this by Mr. Justice Dennis O'Connor.

However, I have noted that in the absence of information, generally, there are rumours, and they are always worse than the truth.

I also think that our security depends a great deal more on the work of your organizations than on the legislation we are amending here.

So I understand the thankless position in which you find yourself, particularly since we are trying to save the lives of potential innocent victims of terrorist activity. I have not lost my old reflexes as a lawyer, and I think that in behaving in this way, we must also avoid having innocent victims suffer an unacceptable fate.

Could you tell me exactly why the United States sent Mr. Arar to Syria? Have you asked that question? If so, did you get an answer or not? If you did get an answer, did it have any impact on your way of handling this matter?

I am asking all these questions at once, because I have very little time. I think it is normal that someone who was sent in Syria by the United States and who returns from there would necessarily be a person of interest to you. However, it does not seem to me that you have dealt with the issue as though that was the case.

[The Chair, Conservative, Garry Breitkreuz]

A very brief response.

[Jim Judd]

I have two quick responses to you, sir. One is that a number of Canadian officials, elected and unelected, made requests to the United States as to what it was they based their decision on. To the best of my knowledge, I do not know of any Canadian official, elected or unelected, who ever got an answer from American authorities on that issue.

With respect to the question as to whether Mr. Arar was or was not a subject of interest, I'm going to do a turtle and retreat into our conundrum on national security confidences, which is that as a matter of principle we neither confirm nor deny whether individuals are or are not subjects of interest to us in an investigation.

I regret saying that, because I understand the frustration that follows it, but that is the general principle that our organization and other intelligence organizations operate on around the world.

[The Chair, Conservative, Garry Breitkreuz]

Ms. McDonough, for five minutes, please.

[Alexa McDonough, NDP, Halifax, NS]

Thank you, Mr. Chairman.

It's hard to know, at least on the basis of this morning, whether the frustration that we feel is a function of what you have said about not sharing information or whether it's because some of the problems that were caused by CSIS were more by omission or by inaction than actual acts of commission.

I want to follow up briefly. My colleague Mr. Ménard raised the question of whether you would be more comfortable if you were answering some of these questions in camera. I just want to put the question to you of whether the committee would have reason to believe that we would get more information, on the basis of which we could come to some form of conclusion, if we were meeting in camera. I ask that question recognizing that if it's problematic for you that there are suspicions about an agency that operates on the basis of secrets, it's also a concern for parliamentarians. But I really want to understand whether some of the information that we are desperately seeking would be more forthcoming in camera and therefore that's something that should be considered as a further step.

[Jim Judd]

My natural predisposition would be to be more forthcoming. Unfortunately, we do have a set of policies and principles relating to national security confidence that we have followed historically, as do other services of our sort, in terms of what we will or will not convey publicly.

With respect to the issue of whether or not more could be conveyed in camera, I would just quickly say two things. Among my many deficiencies, I'm not a lawyer. Given that the whole issue of national security confidence is before the courts, I would have to seek the advice of legal counsel as to whether or not this would be feasible.

[Alexa McDonough, NDP, Halifax, NS]

We have a responsibility to try to get to the bottom of these questions. Today we don't seem to be doing so well. Maybe we need to figure out whether more of that information would be forthcoming in camera.

I want to briefly pursue another line of questioning. Justice O'Connor concluded that for reasons of its own, CSIS preferred that Mr. Arar not return to Canada. He offered evidence for which that seemed to be the case. One reason was that CSIS was concerned that if detainees such as Mr. Arar were returned to Canada, CSIS would require more resources to monitor individuals. The second reason was that CSIS expressed concern that the U.S. government might question Canada's motives and resolve if Mr. Arar were released. I wonder if I could ask you to comment on those two conclusions by Justice O'Connor.

In other words, with the issue of resources, if that did apply at the time, would it still be the case? Secondly, there is the question of whether the information would have been more forthcoming and whether CSIS would have been more proactive if it weren't worried about causing problems with Canada's relationship with the United States.

[The Chair, Conservative, Garry Breitkreuz]

There's one minute left for a response.

[Jim Judd]

Very quickly, I gather that Mr. O'Connor came to those conclusions on the basis of both in camera and public testimony by officials of our organization. I personally did not testify before Mr. Justice O'Connor.

With respect to the question related to resources, we always have to do a balancing act in terms of what we do by way of investigatory activity, which for want of a better expression is often referred to as taking a risk management approach to balancing resources and operational priorities.

With respect to the second question, I'm not sure I would personally share that view.

[The Chair, Conservative, Garry Breitkreuz]

Thank you.

Mr. MacKenzie, five minutes.

[Dave MacKenzie, Conservative, Oxford, ON]

Thank you, Chair.

Mr. Elcock, I know that my friend here was critical of the fact that you hadn't read the report. What is your role right now? You're not involved with CSIS.

[Ward Elcock]

No. I have a day job. I am the Deputy Minister of National Defence. We're fairly well occupied at the moment; I just haven't had the chance to read it.

[Dave MacKenzie, Conservative, Oxford, ON]

I'm not being critical, because I recognize that.

I would question some of my friends opposite as to whether they have read the report. If they read the analysis and recommendations on pages 162 and 163, they might see that Justice O'Connor is not that critical of CSIS and the role that CSIS played in this. I would perhaps question the demands for apologies from many of them about CSIS's role. When I read Mr. O'Connor's analysis and recommendations, I don't see where he has faulted CSIS a great deal for what transpired.

I think if we look at it on the basis of where fault lies, there are lots of shoulders to bear that responsibility, including political, press, perhaps the RCMP, and perhaps CSIS in some small way. But I don't think it's fair for us to be overly critical of CSIS, when we see what Mr. O'Connor wrote after having the opportunity to hear a lot of testimony.

It's fair that we're here to ask what we can about some of the issues surrounding it. It wasn't our intention with this committee to redo O'Connor. We are concerned about issues surrounding what political people knew and what they should have known, and perhaps what they did to secure Mr. Arar's release from Syria.

I guess that would lead into my question. During that period of time, when there were discussions about the one-voice letter and what was going on in Syria, can you tell us what CSIS's role--not the words--would have been in briefing the political people to work together on that one-voice letter?

[Ward Elcock]

Mr. Chairman, I saw the minister regularly throughout that period and throughout my term as director of CSIS on a wide variety of issues.

With respect to that specific issue, it was my view that it was inappropriate for CSIS to be...or that the request was inappropriate, in a sense. Once the request had been made, we had to deal with it. The reality was that it fundamentally offended the principle that we would neither confirm nor deny any inquiry with respect to any individual. Therefore, since the letter would effectively have been public, it would have been beyond the control of the Government of Canada. It was essentially a public letter, and my advice was that we couldn't go there.

[Dave MacKenzie, Conservative, Oxford, ON]

It would not have mattered whether it was the Arar case or any number of other issues that you would have been dealing with at the same time.

[Ward Elcock]

That's correct.

[Dave MacKenzie, Conservative, Oxford, ON]

And it is also fair to say that CSIS was dealing with a number of other issues, as it does on a day-to-day basis, and that this was not the only issue before CSIS.

[Ward Elcock]

That would be right.

[Dave MacKenzie, Conservative, Oxford, ON]

That's it, Mr. Chair.

[The Chair, Conservative, Garry Breitkreuz]

Thank you, Mr. MacKenzie.

The next round will be our final round. I will have to limit the questioning to approximately four minutes in order to get through the round.

Mr. Alghabra, please.

[Omar Alghabra, Liberal, Mississauga—Erindale, ON]

Thank you, Mr. Chair.

I want to follow up on what Mr. MacKenzie said. It's true that Judge O'Connor made it clear that he hasn't seen any evidence that CSIS had shared information with the United States, and that CSIS had responded appropriately after the arrest of Mr. Arar. But it's still really unclear, even after today's testimony, what role CSIS played in the investigation into Mr. Arar prior to the detention of Mr. Arar by the United States. That's what we're trying to find out today, and to this minute, with the committee meeting almost over, we still have not received a single clear answer about what role CSIS played in the investigation into Mr. Arar.

I am going to ask this question again: Was CSIS involved in investigating Mr. Arar prior to his detention in the United States?

[Jim Judd]

As I said in response to an earlier question, the investigation CSIS had, as is reported in Mr. O'Connor's report, involving a number of individuals was transferred to the RCMP. The RCMP subsequently conducted its own investigation, leading up to certain conclusions that the RCMP came to with respect to the individuals involved in that.

This is not to say that Mr. Arar was or was not a subject of investigation or interest to CSIS before that. I'm sorry, but our principle on identifying whether individuals are or are not subjects of interest to us is one we have to adhere to.

I would just remind you that Mr. O'Connor was quite categorical in laying out in his report how from the time this issue was transferred to the RCMP it became an RCMP investigation.