Public Safety Committee on March 24th, 2009

[Alex Neve]

My reaction would be that this is a very laudable goal but it has been done. Justice O'Connor made that a central part of his efforts to decide the best review mechanism for Canada. He drew on expertise in a number of other countries. His staff spent time in other countries investigating that. So it has been done, and it plays a central role in the kind of recommendation he put forward.

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

Maybe this is not something a review body would deal with, but something that's part of a culture or operation within these organizations.

Mr. Kafieh, you talked about CSIS showing up at your doorstep, and I've read Ms. Pither's book, which talks about the extent, for example, of surveillance and following people around. They seem to have unlimited resources to follow people around with the flimsiest of evidence. Is that something that can be avoided? Does oversight help that at all, or is there another problem that we might have?

[The Chair, Conservative, Garry Breitkreuz]

You have one minute for a response.

[James Kafieh]

If you have resources wasted because you're following people without a foundation for doing so, then you're not doing your job properly; you're not protecting Canadians. If you're not tailing people without some substantial reason to be tailing them, you are wasting the intelligence security resources of the country. How does that make any of us safer?

[The Chair, Conservative, Garry Breitkreuz]

Thank you.

Mr. Rathgeber.

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

Thank you, Mr. Chair.

My thanks to all the witnesses, for both their passion their expertise.

Mr. Neve, you opened your presentation by indicating that states have a positive duty to preserve human rights. I certainly agree with this premise, as do all members, I am sure, on both sides of this committee. But one of the overriding mechanisms that I've heard from all of your presentations has to do with civilian oversight. We've heard different issues regarding a perceived lack of oversight. We also heard from Mr. Kennedy, from the RCMP Complaints Commission. He mentioned the legislative restraints and budgetary and funding restraints necessary for that oversight body to do its job properly. And Mr. Holland, to judge by his questions, certainly agrees with Mr. Kennedy.

The disconnect that I have, however, is that civilian oversight, by its very definition and by the way it's set up, reviews matters after the fact, not dissimilar to how the two judicial inquiries did their job, and not unlike what we're doing here today. We're analyzing what happened and what went wrong, months and years after the events. If these oversight committees were integrated, and if they were given all the budgets they required, how would that prevent a specific occurrence, which happens immediately? The decisions concerning these four individuals didn't take weeks and months and years; they were made within minutes, or certainly within hours. So how could an oversight committee—if empowered, as you were lobbying for it to be empowered—prevent the unfortunate events that happened to these four individuals?

I'm hoping that Mr. Neve, and perhaps Mr. Allmand, might be able to help me out here.

[Alex Neve]

I'll suggest two key considerations, but others may have more to add. The first has to do with deterrent value. If it starts to become known that those bodies exist, and that even if it is after the fact, those bodies are going to take a hard look at what's happened in a particular case and take action, that's going to deter wrongdoing. It's going to deter abuses, and it's also going to lead to the development of best practices. What goes wrong in cases isn't always about individuals wanting to abuse human rights. I think we would all hope and expect that, in a Canadian context, that's far from the usual case. It's often because there's a lack of guidance, unclear training, improper policies in place. Through ongoing review, these areas can be identified and remedied. So there's a deterrent piece to it.

The other consideration is that we have to recognize, unfortunately, that many of these cases don't play out in the course of a weekend, or even a few short days. All of the cases you're looking at played out over many long months. So if there had been a clear place to go, for family members, for instance, one, two, four, five months into some of these tragedies, there might have been an opportunity to get a review agency involved in looking into what was happening, even while things were still unfolding. It might not have avoided the initial arrest and detention, but it might have offered an opportunity to identify bad practices that were prolonging the detention, which might have brought those tragedies to an earlier end.

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

Thank you.

Mr. Allmand.

[Warren Allmand]

The agency that's been proposed for review by Judge O'Connor would do two things: it would receive complaints and investigate them, and it would have the power to initiate audits. I agree with Alex that the agency's being there with full powers would have a deterrent effect. As Shirley Heafey pointed out, in Calgary, because the police know that they are so ineffective, they cooperate and they have a high approval rating. If it became known to the agency that the RCMP was still sharing information without caveats, they could launch an audit themselves, without complaints. This way they could find out what was really happening with sharing information, and also with the processes for checking up on accuracy and relevancy with respect to labelling.

That's why it is not only the review agency that is important, but also the implementation of the 23 recommendations. Although we have the letter from Minister Van Loan saying that they have implemented 22 out of 23, there's really no information there to say.... I think members of Parliament and the public need to know exactly what is going on with respect to the recommendations, whether they should be verified or screened for relevancy and accuracy. How are you going to make sure that we're not going to get people labelled as Islamic extremists when they're not Islamic extremists?

So it's not just the review; it's also the 23 recommendations. This is very important.

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

On that point, with respect to the exchange of information--and the 24 Canadian agencies that share information--I heard from a number of witnesses--primarily you, Mr. Allmand--that in these four incidents, it contributed to the atrocities.

But I'm curious. Doesn't this sharing of information on occasion prevent inaccurate information? For example, if one policing agency had information on an individual--and I'm asking this question hypothetically and not in regard to these four individuals--and the rest of the agencies were not able to confirm or back that up, wouldn't the sharing of information among agencies perhaps solve a problem, as opposed to contributing to one?

[Warren Allmand]

O'Connor did not find that, and he looked at everything. He found, for example, once A-O Canada had labelled Mr. Arar and his wife as extremist Islamists associated with al-Qaeda, and that information was shipped to the United States, the Americans receiving the shared information relied on it.

There were others. I point out that this wasn't the only misinformation that was sent respecting Mr. Arar. So it's very difficult, for example, for these police forces. Anyway, that won't work.

I didn't do the work; Judge O'Connor did. It took him three years, and he says we need a comprehensive oversight. We all worked in the field as intervenors, and we firmly support that.

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

Go ahead.

[Kerry Pither]

I would just add very briefly that one of the recommendations Justice O'Connor made was that the inaccurate information shared about Mr. Arar be corrected, and that caveats that weren't attached to the information that was shared be attached now. The same has to be done for the other cases, and I think that would be an example of how with the right controls and that ongoing review and audit, information-sharing could indeed do as you're proposing and correct inaccuracies. It certainly didn't happen. As Mr. Allmand has pointed out, Justice O'Connor found no evidence of that taking place. And to date we have no concrete examples of how those steps have been taken, if they have, with respect to Mr. Elmaati, Mr. Almalki, and Mr. Nureddin, despite findings from....

I think what happened to Mr. Almalki's family earlier this month shows that the inaccurate information and those allegations, which had no basis--and who knows what the allegations against his family are--continue to keep his family on those lists.

So you're right, that is an important role for the agencies to play, with sufficient oversight and mechanisms in place. I would just add that as I said in my presentation, and as Mr. Neve raised, as did Justice O'Connor, the deterrent factor is important. The officers and officials must expect that the legality of their actions will be reviewed. Having that expectation in place was part of his vision for the 23 recommendations.

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

Thank you to all the witnesses.

[The Chair, Conservative, Garry Breitkreuz]

Thank you.

Mr. Oliphant, please.

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

Thank you.

Thank you all, not only for today but for all you've been doing.

This question could be for all of you. How often do you pray, where do you pray, with whom do you pray, and where do you go after you pray? You're all welcome to answer it.

[James Kafieh]

I'd like to answer that.

The point is that I recently had experience with SIRC. I went through it, and the reason, in part, was because a person, during a security screening interview, was asked personal opinion questions. The person was an Arab Canadian, an airport worker, and they were asked, “What do you think of the Palestinian Authority? Why do you think they can't achieve peace, or do you think they'll ever be able to achieve peace? Do you think it's okay for the government to describe some organizations as terrorist organizations?”

The person wasn't applying to be a foreign policy analyst. They were a customer service representative with a major airline. That was their job. What was interesting--and it ties into this business of compartmentalization--was that we argued that this was a violation of section 2 of the charter. They have a right to have these beliefs, as long as they're legally held. There is no correlation between having these beliefs and criminality.

The government argued at SIRC that SIRC lacked jurisdiction to deal with the charter, that they were limited to looking at the specific enabling legislation for CSIS, and that the requirement to look at political beliefs comes from the government security policy and that's from Treasury Board, and SIRC had no jurisdiction to look at anything the Treasury Board produced.

So this compartmentalization is exploited. This is why there has to be an overarching agency that will review all these things.

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

Mr. Allmand.

[Warren Allmand]

The question you ask is related to an understanding of the religious practices of different religious groups in Canada, particularly Muslims. Judge O'Connor said that the A-O Canada group that was investigating was not properly trained and did not have the experience to do the investigation for this type of work. That's why the McDonald commission, in 1981, recommended that the RCMP get out of security and intelligence and set up a new group. You would recruit and train people who have the education and background, know about international affairs, know about the different cultures of different groups in Canada, and know religious practices and understand them.

The people in the RCMP are very good at police investigation, criminal law enforcement, provincial policing, and so on, but when they get into security and intelligence, they haven't the training or the background to assess what is or is not really important. They ask people questions such as whether they go to the mosque and why they pray. That becomes something suspicious. It goes back to the recommendation, one of the 23, with respect to the training and recruitment of people for security and intelligence.

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

There's no way I wanted this to be trite at all. It is an issue I live with every day as a member of Parliament for Don Valley West. I'm dealing every day with people who encounter CSIS agents, who frankly, I believe, have too much time on their hands to be doing what they're doing. That's an operational problem.

I want to follow up on what Mr. Harris and Mr. Rathgeber said, as well. And don't get me wrong. I'm completely supportive of Mr. O'Connor and Mr. Iacobucci and of weaving Mr. Iacobucci's recommendations into O'Connor's. Oversight is critical, but best practices and operating principles have to also flow from an understanding of human and civil rights. We can't wait for the mistake.

These are not unfortunate incidents. They're not unfortunate; they're wrong. They're violations. I'm just wondering whether you can comment--anybody can comment--on what best practices and principles, leaving oversight aside, need to be put in place to guarantee human rights on a day-to-day basis, whether it's CBSA, CSIS, the RMCP or any of the other 21 agencies.

Mr. Van Loan may have given you a letter, and I'm really anxious that our committee get a copy of it. We need that letter.

On best practices, what can you add to that?

[Chair]

We have one minute.

[Kerry Pither]

I know that you said putting oversight aside, but I just want to point out that in recommendation 3(c), on training, Justice O'Connor recommends that oversight bodies periodically review training curricula and assess the adequacy of training in light of the complaints and reviews it's receiving.

Mr. Harris asked earlier about what difference it would have made then. Mr. Elmaati, at the time he received a visit, was asked how many times he prayed, had been threatened with the word meaning torture in Arabic, and was being followed by 14 cars at a time all over Toronto. An allegation about him was in the media. He tried to contact CSIS and couldn't. If that body had existed at the time—he's one of your constituents, and he lives in your riding—he could have gone and registered a complaint about that. That complaint could have triggered a review of the day-to-day operational activities of the agencies in question. I would just say that I don't think you can separate them out. However, it is important to think of the practices themselves.

[Alex Neve]

I, too, was going say training. You cannot overemphasize how important training on exactly those issues of human rights and civil liberties is. We see time after time, with various government agencies and departments in Canada and around the world, that when it comes to the human rights part of the training, whatever the context may be, it's kind of a one-hour module at the end of everything else.

The best human rights training is training that infuses every single moment and aspect of the training. When they're doing operational training or scenario-based operational training, human rights are an essential part of everything. Again, coming back to the important observation Ms. Pither made about the connection between all these other recommendations and the oversight body and the kinds of audit provisions these oversight bodies would have, these are the kinds of things they could look at through oversight: How is training going? Is it adequate? Does it need to be improved?

[The Chair, Conservative, Garry Breitkreuz]

I'm sorry, but we're really running out of time.

Mr. Kafieh, do you have a 15-second response?

[James Kafieh]

You have to change the culture within these organizations. What the Iacobucci report indicated is that they didn't really care how the information was gotten and where it was gotten. All they cared about was that the information was useful to them somehow.

When it comes to the culture, one of the reasons Ahmad Abou-Elmaati was singled out for suspicion was that he had a civil liberties guide on what to do if CSIS calls, which we distributed as widely as we could.