Public Safety Committee on Nov. 1st, 2006

[The Chair, Conservative, Garry Breitkreuz]

I'd like to call this meeting to order.

This is the Standing Committee on Public Safety and National Security. This is our 18th meeting. Today we are dealing with Standing Order 81(4) on the main estimates for the years 2006-2007, vote 25 under Privy Council, referred to the committee on Tuesday, April 25, 2006.

We would like to welcome our witnesses from the Security Intelligence Review Committee. The chair, Gary Filmon, will have some introductory remarks, and he can introduce the rest of the people with him.

We're also going to be dealing with the order of reference of Thursday, October 26, the study of the SIRC annual report 2005-2006. Also, we will deal with Standing Order 108(2), a study of the report of the Commission of Inquiry on the events related to Maher Arar.

We will be dealing with all three of those things in the two hours we have before us.

Mr. Filmon, if you wish, you can deal with all three issues in your introductory remarks or deal with them as you wish. Welcome to the committee. You may proceed.

[Gary Filmon, Chair, Security Intelligence Review Committee]

Thank you, Mr. Chairman and members of the committee, for the invitation and the opportunity to appear before the committee. I believe the last time the Security Intelligence Review Committee was invited to appear before this committee was three years ago. So we're pleased to be here today and to respond to the issues you would like to cover.

It is a pleasure for me to introduce my fellow members. All four are here today. We have Roy Romanow, the former premier of Saskatchewan, someone who's probably familiar to most of you. We have Baljit Chadha, a prominent businessman from Montreal. We have Ray Speaker, a former member of Parliament and probably a familiar face to many of you. And we have Aldéa Landry, a former deputy premier of New Brunswick.

As well, we have a number of staff with us: our executive director, Susan Pollak; deputy director, Tim Farr; our legal counsel, Marian McGrath; and one of our researchers, Sacha Richard.

I'll begin by giving a little bit of background. I was appointed to the committee three weeks after 9/11. I was named chair just over a year ago. So I have been immersed in the challenges of security intelligence for some time now. Over the past five years, the Canadian intelligence security landscape has changed dramatically, but the framework that defines the powers and authority of both CSIS and SIRC has stood the test of time, in our view.

I'll give you a brief overview of SIRC's mandate and operations. Our role is relatively easy to describe, if rather complex to execute. We have two basic functions: one, to conduct reviews; the other, to investigate complaints. SIRC has, in law, absolute authority to examine all of the service's activities, and has full access to all of its files, no matter how sensitive or classified the information may be. The sole exception is cabinet confidences.

SIRC's reviews are designed to yield assessments across a wide range of CSIS activities. Our reviews cover all of CSIS's key program areas, although we recognize that counter-terrorism is CSIS's number one priority. We also examine CSIS's arrangements with foreign and domestic agencies, as well as the advice and assessments they provide on an ongoing basis to the Canadian government.

All of SIRC's reviews are done by assessing CSIS activities against four instruments, which together form the service's legislative and policy framework. These are: one, the CSIS Act; two, ministerial direction; three, national requirements for security intelligence; and four, CSIS operational policy. Each review includes findings and recommendations, which are sent to the director of CSIS and the inspector general. Occasionally we submit special reports under section 54 of the CSIS Act directly to the Minister of Public Safety. Our most recent such report examined the case of Maher Arar.

SIRC also investigates complaints about CSIS brought to us by individuals or groups. These complaints can be about CSIS activities, security clearances, citizenship, or human rights issues. We issue reports and make recommendations to the director and the minister, and we also report the findings of our investigations to the complainant.

I will not describe these two responsibilities in more detail because I'm sure you are already familiar with these topics, although I'd be happy to answer any questions. I'd also invite you to visit our website at www.sirc-csars.gc.ca if you want more information.

SIRC uses a number of mechanisms to reassure Canadians that CSIS is playing by the rules. We maintain a comprehensive website, participate in conferences and symposia, and visit universities. But perhaps our most visible vehicle is our annual report, which is also our primary means of reporting to Parliament on what we do. It's a sanitized public summary of the much more detailed, highly classified reviews and complaints investigations that we undertake during the year.

Our 2005-06 annual report was tabled in Parliament on October 26. This year's report provides highlights of seven reviews, as well as four decisions rendered in complaints cases. Among the more noteworthy reviews was an examination of CSIS's relationship with agencies in four countries suspected of human rights violations and an examination of CSIS's electronic surveillance and information-gathering techniques to gain a better understanding of how rapidly changing technologies are being used by CSIS and exploited by terrorists and foreign intelligence agencies. Our annual report outlines the 14 recommendations stemming from these reviews.

In 2005-06, SIRC also dealt with 63 complaints, a significant increase over recent years, and we issued four new decisions. In addition to our annual report, SIRC, like all other federal departments and agencies, prepares an annual report on plans and priorities, which was tabled in Parliament in September. It underlines that although we are a small organization—just 20 employees with a budget of $2.9 million—we are pursuing an ambitious agenda.

I know this committee has devoted considerable effort over the past month discussing the results of Mr. Justice O'Connor's factual inquiry concerning Maher Arar. As you know, SIRC conducted its own review into the matter, although we only examined CSIS's involvement, consistent with our mandate. A report was prepared pursuant to section 54 of the CSIS Act, which means that it was submitted directly to the Minister of Public Safety.

Shortly after receiving our report on May 19, 2004, the minister provided the full classified version to Mr. Justice O'Connor. We were very pleased he was made privy to our section 54 report, and we trust he benefited from our work in completing his own investigations of this case. I would also note that after examining our own findings in light of his report, the committee found them to be consistent with Mr. Justice O'Connor's factual inquiry.

Needless to say, SIRC does not lack for work, and in these turbulent times, several ongoing initiatives will likely impact us, such as the government's response to Mr. Justice O'Connor's eventual recommendations on an independent, arm's-length review mechanism for the national security activities of the RCMP and the proposal to create a committee of parliamentarians to review the activities of all of Canada's security and intelligence organizations.

In the meantime, however, we will continue to work to ensure that Canada has a security and intelligence service that acts within the law, honours our democratic values, and fully respects Canadians' rights. Our objective is even more important since 9/11, as we struggle to find the traditional Canadian balance between protecting public safety and upholding our civil liberties.

Once again, thank you for inviting us to appear before you today. My colleagues and I look forward to answering any questions you may have.

[The Chair, Conservative, Garry Breitkreuz]

Thank you very much, sir, and I'm sure there will be plenty of questions.

The usual practice in this committee is to start with the official opposition, the Liberal Party, then we'll move to the Bloc, the NDP, and then over to the government side.

The first round is seven minutes of questions and answers. Then in subsequent rounds, other members in order have five minutes.

So we'll begin with Mr. Holland, for seven minutes, please.

[Mark Holland, Liberal, Ajax—Pickering, ON]

Thank you very much, Mr. Chair.

Thank you to the witnesses for coming today.

As you will know, the committee heard yesterday from both the current and former directors of CSIS with respect to the Maher Arar matter.

I have a couple of questions, and the first one stems from a request by Maher Arar that SIRC reopen its investigation of CSIS to determine if there was a cover-up of any intelligence reports.

You may be aware—certainly, you are—that the Syrian government stated that on three separate occasions they were told CSIS was not interested in having Maher Arar returned.

Secondly, there were concerns relating to the fact that the analysis of the data coming from the Syrian government was done by somebody with no experience in torture. Therefore, an assessment was made that it was likely not obtained by torture. Justice O'Connor said that someone with a proper background in torture would not have made that conclusion.

So the first question is, are you intending to reopen the investigation with respect to those particular items?

[Gary Filmon]

We haven't received anything directly from Mr. Arar, but we have received a letter from Mr. Waldman, his counsel. I assume he was acting on behalf of Mr. Arar in making that request to us. I can say to you that the matter is being examined by our committee. We'll need to take some time to investigate a number of the claims that are made within the letter before we respond to that request.

Do you wish me to refer to the points you made about CSIS's actions? I tried to copy them down, but perhaps you could repeat the three things you said were of concern.

[Mark Holland, Liberal, Ajax—Pickering, ON]

There were two items in particular, the first being that the Syrian government claimed there were three separate occasions in which CSIS said they were not interested Maher Arar's return, including in a meeting that occurred in 2002. Now, it was more inferred in that 2002 meeting that that was said, but they did state there were three separate occasions in which that occurred.

The second is with respect to the fact that the individual who did the assessment of the information that came from the Syrian government did not have a background in torture. Justice O'Connor, in his report, stated that if that person did have an adequate background in torture, they would certainly have been alerted to the fact that it was highly likely that the information obtained from Maher Arar was done under duress and under torture.

Moving on, because I know I don't have a lot of time, do you feel at this point, before I go to questions around information flowing to the RCMP, that you've received full disclosure from CSIS with respect to this matter?

[Gary Filmon]

Yes.

[Mark Holland, Liberal, Ajax—Pickering, ON]

I want to talk about information flow between CSIS and the RCMP. Apparently, you did not find any record of how that information flowed. But clearly one of the concerns was that information that flowed from CSIS to the RCMP was then used in leaks and also in information that was given to the United States.

I'm wondering if you could talk about what the procedures are for sharing information. Second, I would like to know how you felt they were either followed or not followed in this instance. Can you give us any light, because we weren't able to get any yesterday, on how this information flowed to the RCMP and then to others, through leaks and otherwise?

[Gary Filmon]

I know it's a matter that may be frustrating to the committee and is difficult for us to deal with, but we're constrained by exactly the same requirements of national security protection as are CSIS in this case.

[Mark Holland, Liberal, Ajax—Pickering, ON]

Maybe I could.... I understand that. It is frustrating for the committee and I know it's frustrating for you. However, I wonder if you can help me with what the procedures are, because I'm really having a difficult time understanding how the information that CSIS gave to the RCMP got to the United States, got leaked. What is the process? Can you talk about it in general terms, if you can't talk about the specifics of what you think may have happened here?

[Gary Filmon]

There actually is a specific memorandum of understanding between CSIS and the RCMP about information sharing. It has multifacets to it, including the requirement for the reliability or otherwise of the information to be specified, and also any caveats that may be required with respect to any information sharing, and also notification if information is requested to be shared with third parties. All of that is covered in the memorandum of understanding, which I might say, as a result of both our study and some of the findings of Justice O'Connor, has been updated very recently, in September.

[Mark Holland, Liberal, Ajax—Pickering, ON]

Moving on to another item quickly, if I could, I will read this to you. We know that SIRC found that the RCMP...the situation reports on the 26th and 27th indicated that the United States Federal Bureau of Investigation, when they were interrogating and detaining Maher Arar and denying him entry into the United States...that the RCMP was aware of that at that time. Yet CSIS is saying they only learned of his detention on October 2. What is your view on the delay in CSIS reviewing the RCMP information in this regard? Why did that delay occur? Do you have any insight into why that might have happened?

[Gary Filmon]

We did receive a response with respect to that, a response that we probably didn't feel was a satisfactory response in terms of the delay. As a result of that, one of the seven recommendations we made in our report on Maher Arar was specifically to address that.

I'm trying to look at which number it was here, of the seven.

At any rate, we did make a specific recommendation--that in this kind of process, where there is very sensitive information that probably ought to be looked at on a very timely basis, there should be some assurance that somebody is watching over it and that the right person is getting that information.

But we were concerned about it. We share your concern.

[The Chair, Conservative, Garry Breitkreuz]

Thank you very much.

We'll now go to the Bloc Québécois.

Monsieur Ménard.

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

Thank you, Mr. Chairman.

Ever since I got interested in the Arar situation, one thing has been troubling me. I am convinced that the work of the Canadian Security Intelligence Service is absolutely vital to protect us against terrorist threats that have hit to other democratic countries. As a matter of fact, that work is even much more important than that of amending legislation. Therefore, one has to give the Canadian Security Intelligence Service the freedom it needs to do its work, within certain limits. Also, it must be able to communicate closely with other similar organizations in other countries.

If, in a democratic country, we have reasons to believe that a foreign citizen has relations with terrorists and that this person intends to come back to the country of which he or she has become a new citizen, it would seem normal to me that the intelligence service of that democratic country provide warning to the new country.

In other words, if the US had reasons to believe that Mr. Arar was linked to terrorist organizations, it would have been absolutely normal, and even unavoidable, that they give that information to the Canadian Security Intelligence Service.

Am I wrong? Since you have looked at many SLOs of other countries and at the relations they have with each other, have you observed this practice?

[Gary Filmon]

I believe that virtually every review that's been done with respect to terrorist acts in the world in recent years, starting from 9/11 on through to Justice O'Connor, has suggested that we need to have more sharing of information amongst the security and intelligence agencies of all the countries in the world, that it's absolutely fundamental to our desire to make this a safer place and to offer a secure environment for our citizens.

In that happening, the important thing is that we have protocols and agreements in place amongst these security and intelligence agencies that do put limitations, as I said in an earlier answer, on how the information can be used, with an assessment of the reliability of the information, caveats, and assurances to prevent misuse of it.

In the particular case you speak of...and I assume you're talking about Maher Arar and the fact that CSIS was not informed about certain actions early on in the piece when he was being detained and then ultimately sent over to Syria via Jordan. It is troublesome to understand how that could take place without there being some direct contact and information, but to the best of our investigation, that is what happened.

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

As a matter of fact, as you have seen, when Mr. Arar was in Syria, the Canadian Security Intelligence Service indicated that it did not want him to be returned to Canada, did it not?

[Gary Filmon]

I'm sorry, I didn't answer that question as well to Mr. Holland; I didn't have time. But the fact is that we did our investigation and did not find any confirmation of that allegation, and I believe, if I'm not mistaken, so did Mr. Justice O'Connor, that he investigated that and could find no confirmation of that allegation.

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

The only thing that we're sure of is that they did not recommend signing the letter that would have been sent by the Canadian authorities to ask for the return of Mr. Arar, perhaps because of some general policy.

Could you give us a clearer explanation than those we have received so far?

[Gary Filmon]

We have the same information as the committee was given, which is that, as Mr. Judd said yesterday to the committee, CSIS wouldn't endorse the letter, among other things because it would mean that the service was denying that a person was a target, and it's their policy that they neither confirm nor deny the identity of targets or persons of interest.

[The Chair, Conservative, Garry Breitkreuz]

There is probably time for one brief question yet.

Monsieur Ménard.

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

Further to the recommendations of the MacDonald Commission, the RCMP was separated from its intelligence service. In fact, I believe that this was the second time that recommendation was made since the Mackenzie Commission had recommended the same thing earlier.

Today, we're faced with a situation where the mistake that led to the unjustified detention of an innocent Canadian citizen was made by the RCMP without the knowledge of the Canadian Security Intelligence Service.

Do you still believe that intelligence investigations should remain the prerogative of the Canadian Security Intelligence Service?

[Gary Filmon]

All I can say is that back at the time we appeared before the Senate committee that was reviewing the Anti-terrorism Act, we did express concern that the Anti-terrorism Act and a number of its provisions did bring the RCMP back into the field of security and intelligence. We expressed that back in I guess it was November 2001.

This is just one experience along the way. I believe it will be up to parliamentarians to decide whether or not the decision that was made in the Anti-terrorism Act to include that area of policy is the right one.

I do accept that we are in an era in which there needs to be a great deal of integration of the different agencies. There is the Canada Border Services Agency, and there are obviously the police at various levels and CSIS involved a great deal in anti-terrorism today. So I think it might be hard to unscramble the egg at this point and say there isn't a role for them.

The key, which is the second half of what Mr. O'Connor is looking at and the concern we expressed at that time, was that there would be two different levels of scrutiny and review or oversight, that they'd be held to different standards. That is, I think, what is now being addressed and may go a long way to solve the concern you've stated.

[The Chair, Conservative, Garry Breitkreuz]

Thank you.

We'll now move over to the NDP.

Ms. Chow, please.

[Olivia Chow, NDP, Trinity—Spadina, ON]

Speaking about integration, clearly, because there are so many different agencies involved, do you think there should be an implementation of a national security commissioner to coordinate all the different services, agencies, and then recommend to perhaps a national security review committee, made up of members of Parliament, so that things are coordinated in a fashion?