Public Safety Committee on March 24th, 2009

[The Chair, Conservative, Garry Breitkreuz]

I would like to bring this meeting to order.

This is the Standing Committee on Public Safety and National Security. This is our eleventh meeting of this session, and we are continuing with our study on the Iacobucci and O'Connor reports.

We would like to welcome to our committee this morning the International Civil Liberties Monitoring Group, Mr. Warren Allmand, spokesperson; British Columbia Civil Liberties Association, Shirley Heafey, board member; Canadian Arab Federation, James Kafieh, legal counsel; Amnesty International, Alex Neve, secretary general; and as an individual, Kerry Pither, human rights advocate and author.

I would like to welcome you all to the committee this morning. We look forward to what you have to share with us.

I understand you have decided that Alex will start, and then we're going to go down the row.

Please introduce yourself again; I may have mispronounced your name. Tell us a bit about yourself. We'll give you approximately ten minutes for a presentation. I'm not usually too strict on the time, if you're sharing something important with us.

Go ahead, sir.

[Alex Neve, Secretary General, Amnesty International]

Thank you, Mr. Chair.

My name is Alex Neve. I'm the secretary general of Amnesty International.

Amnesty International has played a central role in the work around all four of the cases that you are examining, from very early days, when Maher Arar had just been arrested in the United States. So our experience is quite extensive. In November 2003, after Maher Arar had described his ordeal in a national press conference, I received an emotional call from a man who told me about his son, Ahmad El Maati, who he said had been imprisoned in Syria and Egypt for about two years at that point, and still was in detention. He said that Canadian officials had insisted he not go public about his son's case. Now, he had seen that Monia Mazigh had gone public and that her husband, Maher Arar, was home. He feared--and was almost in tears with me on the phone--that he had been wrong to remain silent, and again and again in that call he pleaded with me to know what he could or should do to ensure that his son's rights could and would be protected.

There were similar moments to this in each of the four cases you are reviewing, at every turn and every juncture. Every time, the theme has been the same: where to turn to ensure that the individual's rights could and would be protected. That none of these individuals or their loved ones have known where to turn to secure basic human rights protection was and continues to be a scandal. It is very much our hope that through these hearings and the much-needed attention they will bring this committee will help restore human rights to where they belong in Canada's national security practices. Human rights are the key to national security; they are not the obstacle. That's a point that has been forcefully brought home in two recent international reports.

The first report, issued last month by Martin Scheinin, the UN Human Rights Council's special rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, includes a reference to Maher Arar's case and stresses how important it is to ensure that there is strong oversight and true accountability with respect to human rights violations associated with counter-terrorism practices.

The second report is a lengthy, remarkable report from an eminent panel convened by the International Commission of Jurists, which after close to four years of research, investigations, and hearings around the world, including in Canada, concluded that the ways human rights have been undermined since the September 11 attacks represent “perhaps one of the most serious challenges ever posed” to the integrity of the international human rights system. The eminent panel points out that upholding human rights is not a matter of being soft on terrorism. Quite the contrary: states have a positive human rights obligation to protect people under their jurisdiction from terrorist acts, an obligation that extends to those who may be at risk of terrorism and to those who may be suspected of terrorism.

The cases of Maher Arar, Abdullah Almalki, Ahmad Abou El Maati, and Muayyed Nureddin have been the subject of two extensive judicial inquiries. The result is a disturbing picture of disregard for fundamental precepts of the rule of law, due process, and commitment to human rights. In all cases the use by Canadian officials of inflammatory, exaggerated labels, such as being extremists linked to al-Qaeda, labels not at all borne out by evidence, was shown to have played a crucial role in the chain of events that led to their unlawful imprisonment and torture. Ontario Court of Appeal Justice Dennis O'Connor and former Supreme Court of Canada Justice Frank Iacobucci, eminent Canadian jurists, both catalogued a myriad of shortcomings that caused or contributed to the severe human rights violations experienced by these four men.

Many Canadians likely assume that with the inquiries done and the reports in, these cases and the underlying issues have all been resolved. That is all the more so given that most Canadians are, of course, very much aware of the official apology and compensation that Maher Arar received in early 2007. But there is still far to go, both in ensuring that there truly is justice and accountability with respect to these four cases, and in ensuring that the legal, institutional, and policy reforms needed to guard against similar instances of human rights abuse in the future are enacted.

I'm going to briefly sketch the important work that still must be done to address the pressing concerns at the root of these human rights tragedies.

First is oversight and review. An absolutely crucial safeguard in protecting against human rights violations by police or security agencies in any country, in any context, is to ensure that there is effective, independent, and impartial review and oversight of their activities. In the Arar inquiry, Justice O'Connor spent considerable time and resources canvassing this issue exhaustively. He found that the approach to review and oversight of agencies involved in national security investigations in Canada was complex, unwieldy, incomplete, and inadequate. He proposed a thoughtful, comprehensive, integrated new model. However, more than two years later there has been no public indication at all of progress towards adopting and implementing that model.

We--and all of us here today--have called on the government to do so without further delay, and to implement the precise model Justice O'Connor proposed, nothing less. With a strong mechanism in place for reviewing the national security activities of the RCMP, CSIS, and other agencies, there would finally be an answer to the question that haunted Mr. Elmaati's father and all of these men and their families, and a place to turn to and ensure their rights would be protected.

Second is the critical importance of implementing the reports from these two inquiries. Justice O'Connor formulated a detailed set of recommendations, as that was part of his mandate. Justice Iacobucci did not, as that was excluded from his mandate. However, his findings as to what went wrong, and why, lead quite naturally to implicit recommendations, some similar to those of the Arar inquiry, others perhaps in addition to what Justice O'Connor proposed.

More than two and a half years after the first report was released from the Arar inquiry, there has not yet been any meaningful public reporting as to the implementation of the recommendations. Mr. Arar himself remains in the dark.

Five months since Justice Iacobucci released his report, we have only an assertion that his findings are reminiscent of what arose in the Arar inquiry, that the Arar report has been fully implemented, and that there is nothing more to do.

That's not enough. It is time for full implementation of the Arar recommendations, a public analysis as to what additional recommendations are needed to address the Iacobucci findings, and a commitment to regular public reporting on the progress of implementation. In a letter to Amnesty International earlier this month, Public Safety Minister Peter Van Loan described ten steps the government has taken with regard to the Arar inquiry recommendations. This was the first time we had heard anything of this sort. Unfortunately, the points tend to raise more questions than they answer. For instance, it is asserted that before sharing information with a country that has a questionable human rights record, the RCMP now uses Department of Foreign Affairs human rights reports, but there is no indication as to what approach is taken and what would lead to a decision to share and what would lead to a decision not to share the information.

Third, there must be accountability for the serious human rights violations that have occurred in these four cases. Individuals in Canada, the United States, Syria, Egypt, and Jordan all made decisions or took actions that contributed to the human rights violations these men experienced. To date, to our knowledge, not one person in any of those countries has been held accountable. We urge you to press for details about what has happened to Canadian officials most centrally implicated in these cases. What steps have been taken to determine whether any criminal charges should be laid? What steps have been taken to impose appropriate disciplinary penalties?

When there is no accountability for human rights violations, the only message conveyed is one of impunity, and impunity encourages more of the same. Beyond the accountability of Canadian officials, we also urge you to press for details as to what the Canadian government has done to ensure accountability of officials in other countries. Unfortunately, the government has maintained that in Canadian courts lawsuits against foreign government officials are barred because of Canada's State Immunity Act. Therefore, Maher Arar's efforts to sue Jordanian and Syrian officials in Ontario court failed.

It is not clear how forcefully Canadian officials have pushed for there to be independent investigations and real accountability in any of the other countries involved.

The recent letter from Minister Van Loan indicates that the Syrian and Egyptian ambassadors to Canada have been provided with copies of the Iacobucci report and have been asked to investigate and report back. That falls short of a forceful demand that individuals responsible for the torture of four Canadian citizens be held accountable. At a minimum, we need assurance that formal diplomatic protests have been registered with both governments.

Fourth, there must be redress for all of these men. There has, of course, been redress for Maher Arar. Five months after the release of the Iacobucci report, though, there has been nothing for the other men. Minister Van Loan's letter declines to comment on this, because their cases are currently before the courts, and notes that Commissioner Iacobucci was not asked to address issues of compensation. With respect, that is not the issue. Commissioner Iacobucci documented numerous deficiencies that contributed to the imprisonment and torture of these three men. It is time for redress for the role Canadian officials played in those human rights violations. We urge you to press government witnesses who come before you to lay out what steps they are taking towards a prompt, preferably negotiated or mediated settlement of the claims of these three men, leading to a meaningful official apology and appropriate compensation.

Finally, what we have learned from these four cases must inspire a new approach to how Canada responds to similar situations. Sadly, we need look no further than the current case of another Canadian, Abousfian Abdelrazik, to see that little has changed. Imprisoned on two separate occasions in Sudan, almost certainly, information now reveals, at the behest of Canadian officials, he was subjected to torture in detention, and now, for close to one year, he has been languishing in temporary refuge in Canada's embassy in Khartoum. Rather than take quick and decisive action to right the wrongs in this case, the Canadian government has put obstacle after obstacle in the way of his return to Canada and the restoration of his rights.

That brings us back to Ahmad Elmaati's father, who didn't know where to turn to protect his son's rights. Six years later, thinking about what's happening in Sudan, sadly, it seems, the refrain remains largely the same.

Thank you.

[The Chair, Conservative, Garry Breitkreuz]

Thank you, sir.

Mr. Allmand, you may proceed.

[Warren Allmand, Spokesperson, International Civil Liberties Monitoring Group]

Mr. Chairman and members of the committee, today I am representing the International Civil Liberties Monitoring Group, a broadly based Canadian coalition that came together after September 11, 2001, to monitor the impact of the new anti-terrorism legislation on human rights and to advocate against abuses. We were also intervenors before the Arar and the Iaccobucci commissions.

I come to this issue having spent 31 years as a member of Parliament, four years as a solicitor general, and five years as president of the International Centre for Human Rights and Democratic Development.

Today I will focus on the recommendations set out in the first and second Arar reports.

In his first report, Judge O'Connor reported on his investigation into the case of Canadian citizen Maher Arar to determine how and why he was detained in New York on September 26, 2002, and then surreptitiously sent to Syria, where he was imprisoned and tortured for approximately one year.

Judge O'Connor, after examining all of the evidence, both in camera and public, found that the RCMP had falsely labelled Mr. Arar and his wife as, and I quote, “Islamic extremists suspected of having links to al-Qaeda”. Judge O'Connor said there was absolutely no evidence to support this label. This was in addition to other inaccurate, misleading, and damaging information, all of which the RCMP irresponsibly shared with American authorities.

At page 19 of his report, O'Connor said: “Labels have a way of sticking to individuals, reputations are easily damaged and when labels are inaccurate, serious unfairness to individuals can result.”

Then at page 24 he said, “Project A-O Canada”, which was the RCMP special investigation unit, “supplied the American agencies with a good deal of inaccurate information about Mr. Arar, some of which was inflammatory and unfairly prejudicial to him.”

In his general analysis with respect to the Arar evidence, Judge O'Connor came to the following conclusions. First, the RCMP had not properly checked the information relating to Arar for relevance, accuracy, and reliability. Second, the sharing of this inaccurate information with the United States was contrary to existing policies and without the proper caveats. Third, there was inadequate direction and oversight of the investigating team by senior levels in the force. Fourth, the RCMP investigation unit lacked the training and experience required for this security and intelligence work. Fifth, the RCMP had been thrust back into security and intelligence operations, contrary to the recommendations of the 1981 McDonald commission report.

As a result, in his part one report, O'Connor made 23 recommendations to correct the above-mentioned deficiencies so that cases like Arar would not happen again. These are very specific recommendations dealing with, among other things, mandate, sharing arrangements, training, centralized oversight, policy guidance, screening for accuracy and relevance, joint operations, and racial profiling. As a result, what is required from the government is a specific answer to each one of these 23 specific recommendations.

The general comment by Stockwell Day, who was then the minister, on October 21, 2008, that all the recommendations were implemented tells us nothing about the implementation measures and is unacceptable.

Nor is the letter of March 9, 2009, from Minister Peter Van Loan to Alex Neve in which he states that the government has implemented 22 of the 23 O'Connor recommendations. It is unacceptable that his examples of implementation in the letter do not relate directly to O'Connor's numbered recommendations and they are general rather than specific.

The minister speaks of formal processes, changes to policies and common frameworks, but there is no detail. In the circumstances, how can parliamentarians and the public judge whether or not these responses are germane to the recommendations and whether they are adequate or not?

If Parliament is really serious about correcting the abuses suffered by Mr. Arar, it is imperative that the minister be asked to appear before this committee to give a specific accounting in writing to each and every one of the recommendations in the first Arar report. Only then can you and the public judge whether what was done was consistent with O'Connor's recommendations, or whether more has to be done.

This leads me to O'Connor's second report, of December 12, 2006, in which he proposed a new review agency for the RCMP and a new review process for five other federal agencies carrying on security and intelligence activities. As a result of his inquiry, Judge O'Connor discovered that there were 24 federal agencies in Canada involved directly or indirectly in the security and intelligence business, the principal ones being CSIS, RCMP, Communications Security Establishment, the CBSA, Transport Canada, Foreign Affairs Canada, Department of National Defence, Department of Citizenship and Immigration, the PCO, the Department of Justice, and the Coast Guard.

He also found that there were 247 agreements by which intelligence information was shared internationally and within Canada. In addition, he found that there were an increasing number of joint intelligence operations, known as “integrated national security enforcement teams”, or INSETs, made up of CSIS, the RCMP, the OPP, and Ottawa Police Service. Those are just examples, but there were others as well.

With all this sharing and all these joint operations, it's easy to understand how errors and mistakes by the RCMP and other agencies might escape review and go undetected. The problem is that the existing review bodies--the CPC, SIRC, and the CSE commissioner--have different limited powers and mandates, and in each case are only directed at a single agency. For example, CPC can only deal with the RCMP, and SIRC can only deal with CSIS. Therefore how do you get at joint operations and sharing arrangements?

Some of these review bodies have the power of subpoena; some don't. Some have the right to audit; some don't. Some, such as the Canadian Border Services Agency, have no review body whatsoever. This leaves us with an impossible situation, where issues can easily fall between the cracks.

In chapter 10 of the second report, O'Connor asks if the status quo is adequate. He absolutely and categorically says no. Judge O'Connor says that the RCMP internal controls are not adequate. Ministerial controls are not adequate. Judicial controls are not adequate. The CPC's existing powers are not adequate, and the powers of other accountability bodies are not adequate. He therefore proposes a new body to replace the RCMP's CPC to review the RCMP and the Canadian Border Services Agency, with increased powers to audit and investigate complaints. He also proposes that SIRC be given additional powers to review the security and intelligence operations of the Department of Citizenship and Immigration, DFAIT, Transport Canada, and FINTRAC, in addition to CSIS. He leaves the CSE commissioner as is to review the activities of the CSE. However, to coordinate these three bodies, review all national security practices, and make sure that nothing falls between the cracks, he proposes an integrated national security review coordinating committee that would also receive all complaints and then refer them to the appropriate review agency.

After more than two years since the report's presentation, parliamentarians and the public have the right to know the government's intention with respect to this important proposal and have it, as a bare minimum, implemented as soon as possible.

Again, the answer given by Minister Van Loan in his letter of March 9 tells us nothing. He says, and I quote: “In regards to Commissioner O'Connor's Part II Report, the government is moving forward to enhance security and intelligence review measures.” After two years, it is moving forward to do what? We all have the right to know.

In conclusion, let me emphasize the following. Judge O'Connor spent almost three years on the Arar case. Judge Iacobucci spent almost two years on his mandate, at a cost of millions of dollars to the taxpayers of Canada. These commissions dealt with critical issues of human rights and fundamental freedoms of great concern to all Canadians. They should not be put on the back shelf or be brushed under the rug; they should be enacted as soon as possible so that no one else will suffer the fate of Messrs. Arar, Almalki, Elmaati, and Nureddin.

Thank you very much.

[The Chair, Conservative, Garry Breitkreuz]

Thank you very much, sir.

Go ahead.

[James Kafieh, Legal Counsel, Canadian Arab Federation]

My name is James Kafieh. I'm legal counsel for three intervenors in the Iacobucci inquiry. I'm representing the three of them here today. They include the Canadian Arab Federation, the Canadian Muslim Civil Liberties Association, and the Canadian Council on American-Islamic Relations. These organizations have been active for a very long time on the issues that are before you.

The Canadian Arab Federation, as early as 1991 during the first Gulf War, found itself targeted by CSIS activity in our community. This brochure that I hold before you is from a production that we made during that war. It's entitled When CSIS Calls, and it's basically a civil liberties guide, so that Arab Canadians, and Canadians in general, will know what their rights are and how best to contribute to national security without endangering the fabric of their communities or threatening their own personal security. This is something that the Canadian Arab Federation produced.

The Canadian Muslim Civil Liberties Association has been involved with issues of racial profiling since its founding a decade ago.

The Canadian Council on American-Islamic Relations was active on Maher Arar's file since October 12, 2002, when the first media stories on it hit The New York Times and The Globe and Mail. On that day, the Canadian Council on American-Islamic Relations was very much at the forefront of that effort and were very explicit in pointing out from that very initial point that if Maher Arar were to be sent to Syria he would be at risk of torture, and they were actively trying to confirm Mr. Arar's whereabouts.

As a combined population of Arab and Muslim Canadians, we number about one million. These institutions above that I represent in turn represent the interests and concerns of these communities. Taken separately, or even put together, however you want to look at them, the Arab and Muslim communities are two of the largest and fastest-growing communities in Canada. They have a population spread throughout the urban centres of Canada, but in particular in ridings in Ontario and Quebec.

The issues that are before us today have had a profound impact on the Arab Canadian community. We have a special interest in the success of the O'Connor and the Iacobucci inquiries, whose work is not done until their recommendations are implemented. We understand the Middle East better than any other community in this country, because we speak the language of the Arab world and we monitor the broadcasts and read the publications and we travel there. We do so at a greater rate for obvious reasons: we have connections to that part of the world. We are, as such, at the greatest risk when we travel there.

We're at the greatest risk of recklessly being labelled extremists, a term that Justice Iacobucci found to have no real definition. It meant whatever the author wanted it to mean, without standards on something so important, where labelling alone could get you.... Well, in fact it had a profound impact on having people incarcerated in dungeons and tortured—Canadians.

We are at increased danger from a lack of security and the way the security agencies do their work. The Arab Canadian community lost confidence in Canadian security agencies in large measure from the experience of Maher Arar. And when we saw the treatment of Abdullah Almalki, Ahmad Abou-Elmaati, and Muayyed Nureddin, we understood this was a pattern, that it wasn't just a one-off event but a pattern. And we see the abuse of other Arab Canadians today in other parts of the world—they've already been mentioned—in terms of their perplexing inability to return, with the help of the Canadian government, back to Canada.

It calls into question, for us, the quality and substance of the Canadian citizenship held by an Arab or Muslim Canadian. Can we count on our government to be there? Can we count on our security agencies to protect us like any other Canadian would want to be protected?

We need, as a community, to see evidence of the implementation of all 23 recommendations of the O'Connor report. It's critical that we see it. This shouldn't be something done in secret. It's important for Canada to come clean and to start anew, in terms of building relationships with the communities that are perhaps more critical right now for us to have a good relationship with, so that there is confidence, for example, between the Arab and Muslim communities and Canadian security agencies.

Security is everybody's business. We need to be working together, and it makes it very difficult when we don't see the accountability.

We don't see any aspect of remorse. It's important, in particular, in terms of the recommendations for the Arab and Muslim community—I would certainly refer to 17, 19, 20, and 22. They are on record from the O'Connor recommendations.

But the oversight process is perhaps one of the most important things that has been left undone, because without that, where do Arab Canadians go for redress? Where do they go for answers? How do they protect their citizenship? Do we have to have a royal commission every time this happens? Is this the normal procedure, the standard operating procedure for dealing with these issues? I would argue that for obvious reasons this is not practical. It's not the way a responsible administration would conduct itself. We have to have something that's systematic. It's been studied. It's clear what needs to be done. Justice O'Connor laid it out very clearly, and we don't understand why it hasn't happened already. It calls into question the seriousness of the Canadian government, the level of commitment to fulfill what's needed, what's obviously been found to be needed.

When we talk about also doing what's right, it's important that there be remorse, remorse in terms of the role Canadians did play in the detention and torture of these men. There is an obvious requirement that was explicitly recommended by Justice O'Connor in the case of Mahar Arar, but which Justice Iacobucci was not allowed to recommend. He was only allowed to make findings without recommending, in terms of what the government should do. But the pattern is laid out. An explicit apology to these three men is still outstanding, and beyond that there is an issue of compensation. Without compensation, as well, for the ordeal they went through, the apology will ring hollow.

It's important for Canada, in addition, to protest to Syria and Egypt the fact that there has been no accountability for what their administrations did to these Canadians. It is not something we can do in a credible way, to reach out to these governments and chastise them while we still haven't come to terms with what our own inquiries have revealed need to be done. We have to come to terms, and the obvious thing is to settle up and provide open evidence that the 23 recommendations of Justice O'Connor have been applied and, where there is an obvious application, that those same recommendations—for example an apology and compensation—be applied to the three men who were the subject to the Iacobucci inquiry.

[The Chair, Conservative, Garry Breitkreuz]

Thank you very much, sir.

Ms. Heafey, please.

[Shirley Heafey, Board Member, British Columbia Civil Liberties Association]

Good morning, Mr. Chair and committee members.

I am representing the British Columbia Civil Liberties Association this morning. I am currently the Public Complaint Director for the Calgary Police Commission in Alberta.

Today, I will be giving you my professional expertise, my first-hand experience. I spent five years conducting inquiries on national security. So I know the security service and the way it operates very well. I also know the difficulties the members face in their daily work.

For eight years, until 2006, I was chair of the Commission for Public Complaints against the RCMP. I know the RCMP culture well. It is a culture that forces its members to preserve the prestige of the RCMP at all costs, certainly at the cost of their accountability to the public that the RCMP has to serve.

The previous government had the courage to call an inquiry into the rendition of Maher Arar. Just so you know, prior to the inquiry being called, I initiated a complaint as chair of the Commission for Public Complaints in Mr. Arar's case. Months later I received a two- to three-page letter in response to the calling of the investigation, saying yes, there had been a few little administrative glitches, but everything had been done well. Knowing what you know about the Arar inquiry, I think that has to bring up a lot of questions about the RCMP's ability to look at themselves and to examine themselves when something goes wrong.

The present government also showed a lot of courage in calling on Mr. Brown to conduct some studies and look at the culture and structure of the RCMP, and he declared the RCMP badly broken. Those were his words.

I have talked about the courage of successive governments in taking some action in shedding light on the problems of the RCMP as well as other agencies involved in national security activities. Now the real test comes when there is enough courage shown by this government, by opposition parties, to bring down the iconic RCMP from its high horse and make it truly answerable for the use of its extraordinary powers, the inadequacy of its training, its outdated policies, and its shameless culture of arrogance and superiority.

As you can tell, after many years of struggling to have the RCMP be accountable--I was chair for eight years and a part-time member for two years, so I was involved with the RCMP for ten years all told--I'm not very good at soft-pedalling my views, because they're based on first-hand experience and a very frustrating experience. Just like everybody else, I grew up looking up to the RCMP, and the biggest shock was being there and looking at what they were doing and having my bubble burst every week, every day I was there. It was a huge disappointment.

But what bothered me equally was that the rank-and-file members were really badly served by the unfair and callous way in which they were treated. It was something I worked on as well, but it wasn't something that was welcomed by the leadership at the time. The members--and I think you will probably have seen some of that in the inquiry that's going on in Vancouver--make a mistake, they're put out to sea, and they're on their own. It isn't fair to the rank and file. I think if there was more answerability, more accountability all around, the members would be better for it, and they would be treated better, certainly, the rank and file, who I admire very much.

I've been on the board of directors of the BCCLA since my departure from the complaints commission, and my involvement with the RCMP has continued, because we have made complaints about all the deaths in custody that have taken place in the past three years. We've also made a complaint about the RCMP income trust investigation during the election prior to the last one. We've been intervenors in the Braidwood inquiry in Vancouver regarding the tasering of Mr. Dziekanski and his subsequent death. Our involvement in these cases has elicited generally dismissive and arrogant responses. We have not received anything of substance, and actually one of the unfortunate responses came from the commissioner himself.

Despite the promises of change in the RCMP, I can tell you that as far as we have seen, nothing has changed. There's been no evidence of any change whatsoever, just based on the kinds of responses and the kind of cooperation we get when we make a complaint. Our goal is to work with them and to do what we can. Our organization, our association, tries to work with the police, and it's not working. It's not working with the RCMP. Up until today, it's still not working.

I am not referring to the dedicated rank and file. These members are dedicated. It's not a matter of the people in the organization. There is a culture that draws new members, who come in and are very dedicated. They have to preserve the culture and prestige of the RCMP at all costs. They do regard themselves as.... I am with the Calgary Police Commission at this point. The RCMP works with the Calgary police. I've been involved in some of the joint investigations as an observer, and it's very clear that there is an approach of superiority that really offends most police services, and I see it again today.

Lack of accountability does not serve the RCMP well. This is quite a personal experience that I had. During the Arar inquiry, the deputy director of CSIS, Mr. Jack Hooper, confirmed his initial resistance. When SIRC was first set up, he was my worst nightmare. I was the first investigator at SIRC who had to go into their files and look at their files. No other civilian eyes had looked upon these files before. He was in charge of liaison, and he resisted for almost a year and gave me nothing but problems. During the Arar inquiry, he confirmed that yes, he did resist, but he realized after about a year, and to this day, that they're a better organization as a result of the civilian oversight. I think that says a lot. He went even further; he said the RCMP would be a better organization with adequate civilian oversight.

Justice O'Connor provided a formula for accountability for not only the RCMP but also for all the other agencies involved in national security operations. The chair of the Commission for Public Complaints Against the RCMP, Mr. Paul Kennedy, was here just recently. In his testimony before you, he talked about his inability to oversee the RCMP activities and a lot of the conduct that's complained about. It was déjà vu for me, because everything he said I had lived through while I was at the commission. As a matter of fact, in my annual reports during that time I often called upon Parliament for help, and I talked to ministers to ask for help, because I couldn't get the information to respond to complaints. There were all kinds of other issues that members of Parliament were involved with, and this wasn't urgent, I suppose, so nothing happened.

I went to Federal Court on two occasions to ask the court to help me, because I had no place else to turn and I couldn't get the information. There were two decisions in the Federal Court, and I can provide the references. You'll see in there that both the trial division and the appeal court said that it's not possible for you to do your job, that this legislation is outdated, that there are too many difficulties, and that it is the RCMP that decides whether you'll get the information and what information you'll get. My own comment is that it's like putting the fox in charge of the chicken coop: they would get to decide what I would see or what I would not see.

Both courts said it's up to Parliament to bring about these changes, that they could not do it: “we interpret the law and agree with everything you're saying, but we are not the legislators, so you have to call on Parliament to do this.”

[The Chair, Conservative, Garry Breitkreuz]

Thank you very much.

Ms. Pither, please.

[Kerry Pither, Human rights advocate and author, As an Individual]

My name is Kerry Pither. I've been working on these cases now for more than six years, and my work isn't over yet. When I first started working on these cases, I had been asked by Monia Mazigh to help her in her campaign for the release of her husband, Mahar Arar. That was in May 2003.

I didn't realize, when I first came in to join that work.... There were questions about the involvement of Canadian agencies, but at the time it was mostly believed in Canada that this was the fault of the United States. Several years later, we now know of course that it was the actions of Canadian officials that led to the U.S. decision to send him to Syria for torture, and that it wasn't just Maher Arar, that there were three other Maher Arars: Ahmad El Maati, Abdullah Almalki, and Muayyed Nureddin. That complete picture would take several years and courageous decisions by all four men to go public—tell their stories publicly and demand answers publicly—and two judicial inquiries to uncover.

The picture is this. Four Canadians, all targeted by the same RCMP investigation and by CSIS, all end up being interrogated and tortured at the hands of the same Syrian interrogation team, and in the case of Mr. Almalki by an Egyptian interrogation team, and all of them being imprisoned at the Palestine branch of the Syrian military intelligence.

All have described in gut-wrenching detail how, among other unspeakable atrocities, they were whipped with cables, and in the case of Mr. El Maati subjected to electric shock. Mr. Almalki has described being restrained so that he could be whipped with cables in a car tire. He's described what it was like to survive daily life for 17 months in a dark, underground cell the shape of a grave: three feet wide, six feet tall, seven feet deep. Mr. El Maati has described what it was like to spend almost all of the two years and two months that he was detained in solitary confinement and in wretched conditions, and how at times, with his hands locked behind his back, he was forced to eat like an animal off the floor. Mr. Nureddin has described how his Syrian interrogators would periodically stop whipping his feet to douse them with cold water, to ensure that the nerves were working and that the pain was intense.

All of these men, while being subjected to this torture, were being asked questions provided by Canadian officials or based on information provided by Canadian officials. And here we are today, almost six years after I first became involved and seven years and four months after the torture began for Mr. El Maati, pushing for changes that will stop this from happening again.

I urge the committee to urge the Government of Canada to do two things. First, I agree with my fellow presenters here today that the Government of Canada must be called upon to provide a public, detailed accounting of how each and every one of the recommendations in the Arar enquiry's factual report has been implemented. In doing so, the committee must examine how those recommendations need to be augmented in light of the findings of the Iacobucci enquiry, which was not mandated to make recommendations on its own, and to ensure that those augmented and additional steps are taken.

For example, the Iacobucci enquiry has determined that it wasn't just the RCMP that provided questions to Syrian interrogators; it was CSIS too. Justice O'Connor's recommendation that his recommendations be examined by CSIS for applicability to their actions must be taken doubly seriously, given the findings of the Iacobucci report.

Recommendation 21 in Justice O'Connor's report called on the Canadian government to pull back the border lookouts issued for Ms. Mazigh and for their children. Today, Mr. Almalki's family is experiencing the same kinds of problems that Ms. Mazigh and her and Maher's children experienced. They too appear to have been placed on border lookouts. On March 4, Mr. Abdullah Almalki's 14-year-old son was subjected to a body search while leaving Canada to visit his mother's native home, Malaysia, and his wife was subjected to a body search as well.

They were told they were on a no-fly list. They carried with them—and this is a pretty heavy thing to have to carry around in addition to your passport—the Iacobucci report. They convinced the authorities to let them onto the plane after reading a section of the report that said that the allegations against Mr. Almalki had been inaccurate, unfounded, and inflammatory. The authorities agreed and let them board their plane.

Justice O'Connor's 22nd recommendation does two very important things. It calls on the Canadian government to register formal objections with the United States. In Syria, of course, the same thing now must be done. In light of the Iacobucci findings, formal objections must be registered with the governments of Syria and Egypt for the torture they inflicted on three Canadians.

The second thing Justice O'Connor calls for in recommendation 22 is for the RCMP to inform American agencies of any caveats that should have been applied to information shared and were not, and, very importantly, to correct any inaccurate information provided to the Americans about Mr. Arar.

In the Elmaati, Almalki, and Nureddin cases, Justice Iacobucci finds numerous examples of how inaccurate and inflammatory information was shared about them, not just by the RCMP but by CSIS too, and not just with the United States, Syria, and Egypt, but with numerous other countries, many of which are not even specified in Justice Iacobucci's report. The consequence, of course, is that it makes it very risky, if not impossible, for these men to travel safely.

In sum, Justice O'Connor says of information shared about Mr. Arar that “inaccuracies should be corrected and caveats attached”. The same must happen for information and allegations shared about Messieurs Elmaati, Almalki, and Nureddin.

Another recommendation that needs to be considered in light of Justice Iacobucci's report is Justice O'Connor's 23rd recommendation, which called on the government to assess Mr. Arar’s claim for compensation in the light of his report and respond accordingly. I agree. The same should be done for Messieurs Elmaati, Almalki, and Nureddin. He encouraged a creative approach to mediating a settlement that could involve an apology.

I urge the members of this committee to recommend that the Government of Canada do the same as it did for Maher Arar, which was the right thing to do, and apologize officially to Mr. Elmaati, Mr. Almalki, and Mr. Nureddin for its role in their detention and torture. An apology, of course, is an important signal to the men themselves, to all Canadians, and to the world that someone, somewhere, feels remorse and that officially, at least, the Government of Canada regrets the role it played in the torture of its own citizens.

The third, and in some ways the most important, step the committee must urge the government to take is to insist that the Government of Canada recognize that Justice O'Connor's factual recommendations were designed to work in concert with the review mechanism he recommended in his policy review report. As he says at the start of the recommendations in his factual report:

The recommendations are operational in nature and are intended to complement those made in the Policy Review report, which are directed at providing a robust independent, arm’s-length mechanism for the review of the RCMP’s national security activities. Such a mechanism is essential for ensuring that those activities remain consistent with Canadian values and principles.

His recommendations rely, he says repeatedly, on an expectation on the part of the RCMP and others involved in national security investigations that “the legality of their actions will be reviewed”. The RCMP may well have taken steps to ensure the appropriate distinction between their law enforcement work and that of CSIS, as Justice O'Connor recommends in his first recommendation, but as Justice O'Connor says in that recommendation, it is the role of the review body to make sure that remains the case.

Justice O'Connor calls for more ministerial directives to provide guidance for national security investigations. He says they should be made very public. There's no evidence that many of those have been issued, which may be the explanation for the fact that no one has missed the role the independent review mechanism was to play here in ensuring adherence to those ministerial directives.

The RCMP says that it has adhered to Justice O'Connor's recommendations that call for centralized control of information sharing. The point of that centralized control was to provide “an appropriate level of accountability, thereby facilitating review”. The review isn't taking place.

Then, perhaps, the best example is recommendation 10, of course, which says, “The RCMP’s information-sharing practices and arrangements should be subject to review by an independent, arm's-length review body”. Maybe that's the recommendation, the mysterious number 23 that we're not sure of, that hasn't been recommended yet, because of course there is no independent, arm's-length, effective body in place.

In summary, you can't just go halfway. I'm certain that were Justice O'Connor to have known that his recommendation on review was not going to be implemented, he would have written a very different set of recommendations for his factual report.

The others here have talked about why this mechanism is so important. I come back again to Mr. Abdelrazik's case and echo Mr. Neve's concerns: where is this man to turn when he comes home and has questions to ask about what happened to him?

Mr. Chair, committee members, it has now been seven years, four months, and ten days since the sequence of events began and Ahmad Abou Elmaati was detained, whipped with cables, and asked questions based on Canadian information. It's long past due time for Canada to put all the measures in place that will stop this from happening again.

Thank you very much.

[The Chair, Conservative, Garry Breitkreuz]

Thank you all very much for your testimony.

As is the usual practice, we will turn to the official opposition for seven minutes of questions and comments.

Mr. Holland, please.

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

Thank you very much, Chair, and thank you to all the witnesses for appearing today.

I'd like to start by thanking the people here and those who are not who have been the victims of the failures that we're talking about today for their courage to come forward, and say how profoundly sorry I am that Mr. Elmaati, Mr. Almalki, Mr. Nureddin, and Mr. Arar went through the terrible ordeal they went through. Ms. Pither, thank you for bringing that to light, just in terms of the personal story, because I think when we're talking about oversight on some of these elements we can get lost in the theoretical concepts and forget what the real-life consequences are for Canadian citizens who went through horrors we can never imagine.

I want to start, if I could, on the issue of oversight. We had Mr. Kennedy before our committee talking about the two handcuffs that he has to tie his hand behind his back. I'm going to come to Ms. Heafey first, if I can, because as chair of two different bodies with this responsibility, particularly the public complaints commission, Mr. Kennedy is bound on the one hand by legislative restraints that you were referring to and on the other hand by a lack of resources and funding. In fact, not only are we seeing the government not implement Justice O'Connor's recommendations to enhance oversight, which were reinforced by Mr. Iacobucci, but we're now actually seeing funding cuts. We saw a massive reduction in the additional money that had been given to Mr. Kennedy's office.

I wonder if you can talk about the implications of cutting that funding. I think you very clearly spelled out the legislative restraints, but I'm wondering if you can talk about the fiscal restraints and what this loss of money means, and how the fiscal side of things presents a challenge.

[Shirley Heafey]

With every organization, there are never enough funds, so I'm not going to dwell on that in a lot of depth. My experience was that if the RCMP had cooperated, if they hadn't made my job so very difficult.... I mentioned earlier that I went to court twice. Now, can you imagine the amount of time and energy and the expense this took? If I'd been allowed to do my job without all that struggle, I would not have been complaining so much about the money. A lot of the expenses were just struggling on a daily basis to do my work.

There's never enough funding. There's never enough. So my experience was that it would have been a lot easier, and I would not have been complaining about funding, if I'd been able to do my job and not spend days and days and resources just struggling and begging and trying to negotiate and trying to get what I needed to do the job.

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

I want to come back to the comment that Mr. Neve made. I believe it was you who was talking about the challenges that we have when there's no collective oversight, no ability to go cross-agency. We had somebody here from SIRC—and in fairness to them, they were lower down on the food chain, so they probably didn't have permission to speak more freely—who said they didn't really have an issue with that.

But it seems impossible to me that you have the public complaints commission, which has just had its funding slashed by 40%, which doesn't have the legislative mandate to be able to actually compel information and do proactive work, and in many cases you have to have public inquiries at an astounding additional cost. So I'm wondering if you could just talk about that problem, Mr. Neve, of not being able to go beyond just your own agency. Forget all those additional constraints I'm talking about—just the ability to follow the bouncing ball as it works its way through different agencies and what different failures and mistakes might have been.

[Alex Neve]

Absolutely. In addition to the revelations that already were quite well known, I think, before Justice O'Connor did his work--the fact that the Commission for Public Complaints, for instance, had inadequate powers--I think the most stark and important lesson about review and oversight that emerges from looking at these four cases and reviewing Justice O'Connor's report is that we need an integrated, comprehensive approach.

This work happens, as well it should, in a coordinated way amongst police and security agencies. They do work together. Canadians would want and would expect them to be working together. How, therefore, can we not have a review process that responds similarly? A review process that continues to take a silo approach, looking separately at each of the multitude of different agencies--Mr. Allmand listed the many different departments and agencies involved in national security work in Canada now--will be contradictory. It will involve turf battles. It will miss all sorts of issues that fall between the cracks. And we simply can't risk that.

Amnesty International, along with, I think, many of the organizations that were involved in the Arar inquiry, had actually urged Justice O'Connor to go further in his report and recommend that the government set up a new formal institution that would be actually an integrated review agency for all of those different bodies. He hasn't gone that far, and has maintained separate review bodies. But he has, very importantly, called on there being a committee that in an overarching way coordinates and integrates how those bodies are reviewed. We view that as essential.

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

Mr. Kafieh had talked about the impact of not having this oversight and not having somebody to go to. He talked about the impact on particularly Arab and Muslim Canadians who don't feel there's anywhere they can turn. They find it difficult to trust these institutions. They don't have that independent oversight.

But there is the other side of that coin, and I want to come back to some comments you made, Ms. Heafey, that I think are extremely important and aren't talked about enough--namely, the benefits to the agency itself. When we're talking about public trust in an institution, if you don't have the independent oversight that has the full legislative power to do what it needs to do to probe into these cases proactively, it hurts these agencies, doesn't it? You mentioned it with regard to SIRC, but there's also the RCMP.

Do you feel that if the RCMP had this, it would be much stronger as an agency, and public opinion of it would be much stronger? Perhaps you would just comment on that.

[The Chair, Conservative, Garry Breitkreuz]

You have time for a brief response.

[Shirley Heafey]

I truly believe the RCMP would be a much better police service if it were accountable.

I have the experience right now of being counsel and public complaint director at the Calgary Police Commission. I never have to spend any time struggling to do my job. They are there. They are accountable. Just recently, as an example, we conducted a survey, and the Calgary Police Service had 89% approval from its citizens. I think that says a lot. I think any police service in this country would be very pleased to have that kind of result.

That's the kind of impact that would come from accountability. If you know you're going to be checked...and this is what happened with CSIS. When they figured out that we were going to be there, that we were going to be looking at their files, that we were going to be auditing, everything changed. I saw it over the course of five years. By the time I left, it was a different organization.

In my view, there's no question it would make the RCMP a stronger and a better police service.

[The Chair, Conservative, Garry Breitkreuz]

Thank you very much.

Monsieur Ménard.

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

I must say that it is quite discouraging to listen to what you are saying, even though I was prepared for it. Clearly, we insisted on holding these hearings because we knew perfectly well that the rate of implementing these recommendations was 10% to 15%, maybe a bit more. Among the clearest recommendations was to recognize the wrongs done to Maher Arar; again, that was explicit. I agree with you entirely that, just because it was explicit in Maher Arar's case, it does not need to be in the other three cases.

I get the message loud and clear that the most important thing to tackle, the key thing that will have most effect, is to set up a single surveillance organization, as the Iacobucci Report recommended. It is my impression—and, frankly, my reputation is not as the most partisan politician, far from it—that while the present government is in place, little will be done to set up mechanisms for real change. It is my impression that the government feels that the police and the secret services have a difficult and essential task to fulfill—and I agree completely—which, when it comes to getting information from a terrorist, inevitably requires the use of tough measures that cannot be revealed to the public. So we have to make arrangements with countries that do not share the same ideals as we do, but whose police forces are more effective.

I really do not know where to start. I could have hundreds of questions for you. But they are not so much for you as for the government. Government representatives will give us the same answers: they have implemented 90% of the recommendations. But looking at the precise details in these recommendations, it is easy to conclude that almost nothing has been done.

I will ask you one question, though. I really understood the messages everyone sent us very clearly and I hope the government understood them too. But it is my impression that there is no political will to put them into effect.

Mr. Kafieh, you represent, and speak the language of, communities who, I am convinced, should be cooperating with Canadian authorities if we want to protect ourselves from terrorist attacks. You know people who speak the language, who know the habits, who know the milieu, and who, I am sure, would be only too pleased to help the police if the police were at all well-disposed toward them.

Do you think that I am kidding myself by thinking that, in your communities, people might well want to help the police but are reluctant to do so because it is a huge risk to take? Adil Charkaoui, in Montreal, for example, told us something that is not a common occurrence, I hope. His problems started when the police asked him to cooperate and give them information. His reply was that he did not want to take the risk and that he did not have information anyway. The police reaction was to tell him to watch out in case anything happened, and we saw what did happen to him.

I am not sure if your community really wants to cooperate with the police, given those huge difficulties. How do you think you would be received, if you did?

[James Kafieh]

In principle, we are absolutely dedicated to the security of this country. We are the first people who are likely to be targeted by a terrorist attack. We're going to get it in terms of one end or the other. When the Oklahoma Murrah Building was blown up, within minutes commentators on television were blaming Middle Eastern groups. So right away they came after Arab and Muslim Canadians, or Muslims in North America. They wouldn't do this for other ethnicities. It turned out McVeigh was the name of the person who was responsible for it. They didn't begin profiling Irish and Scottish Canadians with names similar to the bomber's. It was something unique. It's a form of anti-Semitism against Arab and Muslim Semites that's still socially acceptable in Canada. So there is a real problem.

In terms of credibility, there is a problem with CSIS. For example, they often counsel people that they don't need a lawyer. They come to the door and basically surprise people at their doorstep with stories that are simply not credible. I can go into detail for you, but it's as if they're doing a customer service survey regarding things that the Department of Foreign Affairs and International Trade have done, and there's no reason for them to just knock randomly on the door of the person they come to. In one specific case, they came and they told a Lebanese Canadian that they wanted to know what his opinion was on Canada's effort to evacuate Lebanese Canadians during the war in 2006 between Israel and Hezbollah. This person wasn't part of it. His family wasn't part of it. He had nothing to do with it, and the whole idea that CSIS would be going to do that kind of research simply was not credible.

There are also accounts such as you've described where Arab Canadians and Muslim Canadians are subjected to officers who are exploiting the stereotypes of secret police to force people to cooperate. If they don't, there's a clear understanding that there will be retribution, such as immigration clearances for family members will be held up. They are held up for years and there are people who have enormous problems. This is not something that engenders a sense of confidence when security is being handled on this level.

There is a profound concern in the community, but most people will still meet CSIS alone, although I think it's ill-advised. It's a problem because CSIS will talk to people and they will be interested in people because they're either a source of information or a security risk. In either case, you don't know which way you're going to end up in the context of your having great doubts as to whether this officer at your doorstep is there for your benefit and your protection or whether they are there to gather information and open a file on you that will endanger your life when you travel overseas. So this is a very difficult thing.

In our brochure the main thing we tell people right from the beginning is that if they know anything that could be a threat to the security of Canada, they should inform the authorities immediately.

[The Chair, Conservative, Garry Breitkreuz]

We're going to have to end that there. Thank you.

Mr. Harris, please.

[Jack Harris, NDP, St. John's East, NL]

Thank you, Mr. Chairman.

I want to thank all of the presenters here today. As someone new to this committee and new to a lot of the intricate details of not only what happened to these four individuals but also to the Canadian government response, or lack thereof, despite the strong recommendations--it's quite a shock--I think all Canadians who are exposed to these details have to be questioning how it is that our government hasn't done what's necessary to restore confidence.

It seems to me there are at least two or three overriding questions that need to be answered, and perhaps you can help us. We've seen the model proposed by Justice O'Connor as a solution recognizing that the SIRC model seems to be acceptable for oversight of the RCMP, although SIRC, as Mr. Allmand says and Justice O'Connor says, ought to be given authority over other agencies. Is that SIRC model for oversight of a particular agency acceptable, or are there problems with that as well? I say that knowing that perhaps an oversight body is not going to solve all the problems, because Mr. Kafieh is talking about CSIS doing things with the flimsiest of evidence and going after people despite the fact that we do have a SIRC oversight body in place with regard to CSIS. So I'm wondering if oversight is going to solve all our problems. Or do we have other problems that need to go beyond that?

Would anyone care to respond to that?

[Warren Allmand]

Well, no, you need the implementation of the 23 recommendations, plus the comprehensive review body.

The International Civil Liberties Monitoring Group, like Amnesty International, proposes something stronger than what O'Connor proposed. We felt they needed a comprehensive oversight review body that could look at any of the agencies that might be involved in joint operations.

As it is right now, these various review bodies are directed at one agency. You have the many new joint operations, the INSETs, the integrated approach, which includes not only federal.... Judge O'Connor found there were 24 federal agencies that are directly or indirectly involved in security and intelligence, but now with these integrated teams they are working with city police forces and provincial police forces as well. So when mistakes are made and you have three review agencies with different powers and they must focus on the one agency, how do they really get the truth out of what was an integrated operation? That's the problem.

At the very minimum, you need what Judge O'Connor proposed with this comprehensive committee that would oversee the general security field and receive the complaints. He points out that the complaints must go to that committee. When something happens to him or her, the citizen doesn't know whether it was done by the RCMP, CSIS, the OPP, or the Canada Border Services Agency. They would give the complaint to this comprehensive oversight body, and that new body, which would be set up with the powers of subpoena and so on, would say it should go to the RCMP and so on.

The other important thing is that this review body must not only have the right to deal with complaints, but it must also have the right to initiate audits when there appears to be a systemic problem within that agency. SIRC has that power, but the CPC does not. When Judge Antonio Lamer, who was the commissioner of the Communications Security Establishment, left his job, he also said he didn't have the powers to do his job. More recently, I think his replacement has said the same in his annual report.

You need a comprehensive, overarching review agency that has the powers to receive complaints and audit to cover the whole field. The reason that Judge O'Connor was so successful in getting to the bottom of the Arar case is that he could look everywhere. He had the full powers of subpoena, and he could deal with things in camera. He got the answers. But none of the existing review bodies have those powers.

O'Connor proposes that we have that structure, with the three agencies plus a committee over it. But that is the minimum. You could even go further if you want a more efficient type of body.

[Jack Harris, NDP, St. John's East, NL]

Thank you.

It has been suggested by some that the Government of Canada needs to look at agencies around the world for examples before deciding what kind of oversight body to put in place. I'm a bit surprised by that, because I understand that Justice O'Connor did a very comprehensive review.

Mr. Neve, would you be able to comment on that?