Public Safety Committee on March 31st, 2009

[Geoffrey O'Brian]

The simple truth is that I don't know all of the details of that. What I can say is we have agreements that are in three parts: there is an agreement to exchange information for security intelligence purposes; there are agreements for security screening purposes; and then there are technical exchanges that we do. We will have agreements or arrangements with agencies that will be in one or all of those categories. The SIRC report, which I quoted in my opening remarks, indicates that there are certain agencies with which we do business in which there are restrictions, where certain kinds of information are not exchanged.

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

And greens and reds and ambers and yellows...?

[C/Supt Gilles Michaud]

There's no category, per se. We look at each country on a case-by-case basis. It evolves with time as well. In some instances we see countries that had been reported as having poor or questionable human rights being reported over the last year as doing better, though there are still concerns. So it's not a question of green or red.

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

Thank you, Mr. Chair.

Thank you for your answers.

[The Chair, Conservative, Garry Breitkreuz]

Thank you.

Mr. Holland, please.

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

Thank you, Mr. Chair.

Thank you, witnesses.

I'm disturbed by what I heard on this issue of torture. I'm disturbed because while I'm hearing from you that there's a lot of grey and ambiguity, and that it's a difficult question for which there's no clear answer, Justice O'Connor--and I read the section of his report that was relevant to this--is very clear when he says, “Information should never be provided to a foreign country where there is a credible risk that it will cause or contribute to the use of torture.” That's what I was expecting to hear today. Particularly, Mr. O'Brian, that's not what I heard from you.

Let me be very specific. In the case of Mr. Elmaati, we now know that the confession was extracted using torture. CSIS and RCMP officials repeatedly told the inquiry that they had no evidence that Syria used torture, so they didn't consider that a confession would have been a product of torture. We're obviously studying this. No one ever wants to see a Canadian citizen put in this position again.

Very specifically to you, with respect to both Egypt and Syria, where there had been problems in the cases we as a committee are looking at, would you share information with those jurisdictions today--yes or no?

[Geoffrey O'Brian]

I'm going to answer your question in three ways. You've expressed that you were disappointed, and I'm afraid I'm going to disappoint you more.

First point: you refer to the specific findings of Mr. Justice Iacobucci, which I cannot comment on for the reasons I have explained.

Second point: you said that you were disappointed because I could not give a categoric answer about the use of information. I'm sorry I disappointed you on that, and you may wish to take that question up with our director, the minister, or whoever. I attempted to give a substantive answer that explained why the situation, for us in the intelligence world, is a nuanced one. I'm old enough that I go back to the McDonald commission, and it was the McDonald commission that talked about the challenge of any intelligence service meeting both the requirements of security and the requirements of democracy. I'm naive enough to think that we can do that in our country and that we have created a system that actually—

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

But we have individuals who were detained and tortured. These were Canadian citizens. That information was used by Canadian intelligence officials. What I was looking for, what I was hoping for today, was a response that said exactly what was in Justice Iacobucci's report, namely, that we would never use information if there was a credible risk that torture had been present. I'm being told that there are amber lights, and maybe we're going to use it and maybe we're not going to. How do we know that this will not happen again? Let me be specific and direct. Would we today, knowing what we know, having gone through what we've gone through, share information in the same way with Egypt or Syria? Please answer yes or no.

[Geoffrey O'Brian]

I'm sorry, Mr. Holland, I'm tempted to respond in the way that a previous Solicitor General, Herb Gray, always used to put forward in the House of Commons—that I don't accept the premise of your question. I cannot speak, as I've said, to Mr. Justice Iacobucci's report. I can speak to Mr. Justice—

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

Answer the question. Do we share information with Egypt and Syria?

[Geoffrey O'Brian]

Excuse me, I'm trying to. I can answer your question in reference to Mr. Justice O'Connor, who said that CSIS exchanged no information with the Americans before the terrible events that happened to Mr. Arar, and that we did not provide information on Mr. Arar to the Syrians. Now, that I can speak to. When you make sweeping statements, which say that we engage in undesirable practices, I frankly reject those sweeping statements. We have a system—

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

We are talking about a simple, direct question. After knowing everything we know, after seeing Canadian citizens tortured abroad and having that information used by Canadian officials, I want an assurance that isn't going to happen again. I want an assurance that we aren't continuing to share information in the same way that we did previously. My question is simply this—and it can be answered with a yes or no—do we continue to share information in the same way with Egypt and Syria?

[Geoffrey O'Brian]

I can't comment on specifics, but yes, we continue to share information with agencies from 147 countries, and the vast majority of those countries have human rights records that are not as glowing as ours.

[The Chair, Conservative, Garry Breitkreuz]

Mr. MacKenzie.

[Dave MacKenzie, Conservative, Oxford, ON]

Thank you, Chair.

My thanks to the panel for being here today.

Mr. O'Brian, your red, yellow, and green lights might have got us into a big grey area. Do you have the O'Connor report in front of you?

[Geoffrey O'Brian]

I don't have the full report. I have a copy of the recommendations from the factual findings.

[Dave MacKenzie, Conservative, Oxford, ON]

Okay.

Recommendations 14 and 15 are pretty explicit with respect to the sharing of information and talking about human rights and torture. Recommendation 14 talks about reviewing your records and supplying information to countries with questionable human rights. Recommendation 15 talks about Canadian agencies accepting information from countries with questionable human rights.

I would like it if you could explain to Canadians, everybody who's watching here today, what you do with respect to recommendations 14 and 15, because I think there's been some confusion that somehow Canadian agencies accept torture. I think these are pretty explicit, that there is a difference today in what we do from what we might have done prior to this O'Connor report. I would really like it if you could tell Canadians what CSIS does with respect to recommendations 14 and 15.

[Geoffrey O'Brian]

Thank you, sir.

I believe when the director appeared before the committee...and I believe, again, SIRC has commented on the fact that we now have, and we've been using it for several years, a new caveat that we use when there is an indication or a risk that someone may be detained abroad. The caveat we use on any information that we exchange says that we ask that this person be.... I've got the exact wording here, but I'm not going to find it; I'm sorry. The director spoke to that: we have a new caveat.

There have been memoranda of understanding that have been signed by both the RCMP and CSIS with Department of Foreign Affairs, which was one of the recommendations of Mr. Justice O'Connor, to deal with exactly that situation, when someone ends up—

[Dave MacKenzie, Conservative, Oxford, ON]

If I could interrupt, because time is important, in recommendation 14 it says: “Policies should include specific directions aimed at eliminating any possible Canadian complicity in torture, avoiding the risk of other human rights abuses and ensuring accountability.” And in recommendation 15 it says: “Information received from countries with questionable human rights records should be identified as such and proper steps should be taken to assess its reliability.”

Does CSIS do those things now?

[Geoffrey O'Brian]

Yes.

[Dave MacKenzie, Conservative, Oxford, ON]

And that's not a grey area; it's not a red, yellow, or green light?

[Geoffrey O'Brian]

Once again, I'm attempting to.... I apologized to my friend Mr. Holland several times, because it is tempting to give a simplistic yes-or-no answer to what I consider to be a complicated question, but we have a legal answer, an operational answer, a systemic answer, and that's what I've tried to do.

Frankly, when you read recommendations 14 and 15, and if you read the SIRC report of three years ago, in which we gave those exact assurances to the Minister of Foreign Affairs when we signed agreements, the Security Intelligence Review Committee pointed out that it was very difficult for the service to give those kinds of assurances. How can it give those assurances that it will never receive that when it doesn't know where the information comes from, and so on and so forth?

So in fact we have adjusted that, and it becomes a best-efforts process. And I would....

I'll stop there. Thank you.

[Dave MacKenzie, Conservative, Oxford, ON]

Are you telling us that CSIS does not condone torture and that's—

[Geoffrey O'Brian]

Absolutely. Good heavens!

[Dave MacKenzie, Conservative, Oxford, ON]

I think that's the answer Canadians want to hear, that CSIS does not condone torture, nor does it faithfully use the evidence obtained by torture.