Public Safety Committee on Nov. 1st, 2006

[Rick Norlock, Conservative, Northumberland—Quinte West, ON]

Thank you for coming today, gentlemen and ladies. Your attendance here is greatly appreciated.

I'm going to be jumping from topic to topic a little bit quickly here. Recommendations 19 and 20 of Justice O'Connor's report state that CSIS should have clear written policies providing that investigations must not be based on racial, religious, or ethnic profiling, and so on.

What is CSIS's current approach to racial profiling, and to what extent do you think this profiling contributed to Mr. Arar's ordeal?

[Gary Filmon]

In our discussions with CSIS over the last five years or so that I've been involved with the committee, they categorically deny that there's any racial profiling that is part of their operations, and Mr. Judd has said that publicly on numerous occasions. So I can't respond any further to that.

[Rick Norlock, Conservative, Northumberland—Quinte West, ON]

Okay. One of the contentious issues with each body that's come before this committee, and which is of great concern to everyone, is the possibility that somewhere in the administration of each of the bodies, whether it be the RCMP, whether it be CSIS, or anyone else, and I'll have to say, I guess, from your perspective.... We need some reassurance that all these bodies have looked into alleged leaks--information and certain things that were being said to certain parties--that led to something else happening.

Has your committee looked into the possibility that somewhere in your organization there may have been a leak of information that was inappropriate?

[Gary Filmon]

We're a very small and very tight organization. I will honestly respond that I certainly didn't ever contemplate that the leaks took place within SIRC, if that's your assertion. I would be happy to further investigate, but I don't believe there is that possibility.

[Rick Norlock, Conservative, Northumberland—Quinte West, ON]

I'm not making an allegation.

[Gary Filmon]

It's an assertion.

[Rick Norlock, Conservative, Northumberland—Quinte West, ON]

I'm saying that each body came before this committee and there was a discussion with regard to leaks. Each of the bodies looked into their organizations and had extensive investigations to ensure that no one from their organizations did allow these leaks.

[Gary Filmon]

There is a police investigation going on now, as I understand it. Certainly if they want to have any discussions with us, we will be fully cooperative.

[Rick Norlock, Conservative, Northumberland—Quinte West, ON]

Thank you.

With regard to your report to Parliament, I'm wondering if you've had any response to the last two recommendations you made, numbers 2005-07 and 2005-08, on page 74 of the report.

For instance, could you explain a little further the recommendation that “CSIS review and revise the warrant policy in question so that it reflects current best practices”?

[Gary Filmon]

We examine, on an annual basis, a variety of the warrant applications because these are the most intrusive aspects of CSIS operations. Ministerial direction to the service states that the least intrusive investigative methods must be used first, except in emergency situations or where less intrusive investigative techniques would not be proportionate to the gravity and imminence of the threat. As well, of course, under subsection 21(2) of the act, CSIS is required to justify to a Federal Court judge why other less intrusive techniques would be unlikely to succeed when they make warrant applications.

While we recognize that many factors come into play each time CSIS requests and implements warrant powers, we're not sure, based on our review of this particular operation, whether or not warrant powers were necessary in this instance.

I'm not sure what response we received from CSIS on this. At this point, I don't believe we have had a response. We'll certainly follow up on it.

[Rick Norlock, Conservative, Northumberland—Quinte West, ON]

The basis for that question is that we are realizing in the global community that there are increasingly better ways for the “bad guys”--to use terminology that's really simple--to communicate in order to do harm to this country. I thought that related, and it apparently does relate, specifically to the matter in which CSIS obtains the legal ability to access this type of information.

I'm not afraid to say what my motivation is: I'm hoping it isn't designed to be an impairment and a roadblock. While adhering to the law, I'm hoping we're not creating more roadblocks than are absolutely necessary. The people of Canada want to ensure that we don't have things like racial profiling and that we don't break the law. But they also want to be reassured that the balance you referred to, going back to your beginning statement, keeps us safe, and that the safety of Canada is not trumped by the philosophical outlook of certain groups.

[Gary Filmon]

It's a fair comment, and that is one of the reasons we did the study we did on electronic surveillance and information-gathering techniques, which leads us to the issue of the act that died on the order paper at the end of the last Parliament, which was the modernization of investigative techniques act.

I would say to you that in general terms the committee is satisfied that we do need to have our security and intelligence functions keep up with the bad people, so to speak, who are very technologically literate and very used to using the most modern and newest surveillance information and technologies. Indeed, our security and intelligence functions need to keep up, and they need to have a proper legislative framework in which to authorize that.

[The Chair, Conservative, Garry Breitkreuz]

Okay. Thank you very much.

We'll now go to the fourth round.

Mr. Holland, please.

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

Thank you, Mr. Chair.

I want to go back to the point Mr. Cotler was making and one that I was making off the top, first, with respect to the request by Mr. Arar to reopen the investigation of CSIS, particularly in light of Justice O'Connor's findings. I referenced two specific areas, and these were areas that were brought up by Mr. Arar himself. Mr. Cotler, I think, touched upon a couple of others, not the least of which was the issue around CSIS's refusal to sign off on one voice, and the second was the information flow in the information that CSIS was obtaining then being used by the RCMP and sent elsewhere.

So I would add to those two items.

I would like some clarification, because you said at the beginning that you as a group would be looking at this, making a determination to reopen it. Can I confirm that this is the case?

[Gary Filmon]

I said we are in the process of examining the letter from Mr. Waldman, on behalf of Mr. Arar, and we will make our decision based on our examination of a whole variety of issues as soon as we can. We received that letter, as I recall, about ten days ago, and we've only just met and determined to undertake an examination of the issues that were raised.

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

That's fair enough, that you haven't made a determination on it at this point. I can understand that.

There were some other items brought up both today and yesterday, and specifically in Justice O'Connor's report, and I'm making a request and seeing if it's possible for you to review those items as well, in your consideration of whether or not to reopen this.

[Gary Filmon]

The one-voice letter.... The response, of course, that we received, just as you have as a committee, was the one that Mr. Judd made yesterday. We'll take all that into consideration and we will examine it.

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

In a series of very large failures, I would certainly concede that CSIS did not play the largest role in the failures that took place, by any means. That being said, I was really taken yesterday by the comments by both the director and the former director, and therefore this is leading me to the question I'm going to ask. They said, independently, that they believed they and their department played a zero role, no role whatsoever, in Mr. Arar's deportation and the perception that he was a terrorist.

There are two elements out of that. The first is, do you agree? Do you agree that CSIS played a zero role? Or would you agree with Justice O'Connor that there was a role that was played there?

I know it's a hard question, but it's....

[Gary Filmon]

I stand to be corrected, but I don't believe that I read in Justice O'Connor's report that he has concluded that they played a role in his detention and rendition.

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

I think the issue was that they said either in delaying bringing him back, his deportation, or the understanding that he was a terrorist, they played no role. My concern with that—and this is why I'm asking you what your opinion is—is that given that the assessment of the information from the Syrian government was done by somebody with no torture experience; given the fact that there are reports from the Syrian government that on three separate occasions they said they didn't want Mr. Arar back; given the fact that CSIS was in this weird communication flow with the RCMP, where information was being leaked, and then the information seemed to continue to flow from CSIS to the RCMP and there didn't seem to be any discussion—and in fact yesterday they said there wasn't—about how the fact that the information that was flowing from CSIS to the RCMP was to be dealt with, what I was expecting yesterday, to be quite frank, was that they were sorry for any role they might have played, and that there were some areas where there were errors that might have delayed Maher Arar's return, and that for any role they may have played they were apologizing.

But they came out and said they had no role, though I think Justice O'Connor's report clearly identifies that there was a role. The reason that concerns me, and the reason it's important to me to ask you as a group that oversees them, is that if their belief is that nothing went wrong and that everything was done right and they did everything they could possibly do, how can we as a committee have any confidence that any changes will occur, if there's no responsibility taken for what has happened?

In that context, I'm asking whether you share the position of the director and the former director that they had zero responsibility for what happened.

[Gary Filmon]

First, you are not suggesting now that they had any role in his apprehension and deportation. You're talking about whether or not—

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

I'm talking about the whole package: the fact that he took as long as he did to return, the leaks, everything Maher Arar had to go through.

[Gary Filmon]

On the leaks, we'll have to wait for the police investigation to find out, but at this point we have no evidence—

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

It's just a really simple yes or no question. If you look at everything Maher Arar went through—

[Gary Filmon]

Look, I'm sorry. I don't want to be difficult, but you've taken about five minutes to ask the question and then you're telling me to give a yes or no answer. Come on.