From time to time, the BCCLA hosts guest blog posts in order to further public discussion on topics of interest. This guest blog post represents the author’s personal opinion and does not necessarily reflect the position of the BCCLA.
In the aftermath of the September 11th attacks, the Royal Canadian Mounted Police (RCMP) drastically stepped up its national security policing activities. The RCMP also increased its joint national security operations with other federal agencies, especially the Canada Border Services Agency (CBSA), which was established in 2003, and Canadian Security Intelligence Service (CSIS), which had taken over the bulk of the RCMP’s national security functions when it was created in 1984. The accountability arrangements to which the RCMP is subject have not kept pace with its growing national security role, leaving it subject to little oversight compared to CSIS.
The Arar Commission
The federal government committed to creating an “arm’s-length review mechanism for RCMP national security activities” in its national security policy published in April 2004. A commission of inquiry was appointed in February 2004 tasked with investigating the involvement of the Canadian government in the detention and “extraordinary rendition” of Maher Arar to make recommendations about what form the review mechanism might take. The Arar Commission reported in September 2006, recommending that a new institution be created to investigate complaints relating to the RCMP’s activities, especially its national security activities, and conduct preventive reviews of its policies and practices, especially those relating to information sharing with foreign governments.
The federal government waited until June 2010 to issue its response to the Arar Commission’s recommendations. The government did so by introducing Bill C-38, which would have reformed the Commission for Public Complaints Against the RCMP (“old Commission”), the RCMP’s existing accountability body, to make it better able to investigate complaints and given the Commission the power to conduct preventive reviews of the policies governing RCMP investigations. Bill C-38 never progressed past first reading and died on the order paper when the writs were dropped for the 2011 election.
Introducing Bill C-42: The Enhancing RCMP Accountability Act
In June 2012, the federal government introduced Bill C-42, a considerably expanded version of Bill C-38, which provided not only for changes to the RCMP’s accountability arrangements, but also strengthened the RCMP Commissioner’s disciplinary powers and the RCMP’s labour relations regime. The government announced in January, 2013 that it considered Bill C-42 one of its legislative priority and it was passed by Parliament and received royal assent, becoming the Enhancing RCMP Accountability Act. The Act, which replaces the old Commission for Public Complaints with the Civilian Complaints and Review Commission for the RCMP (“new Commission”), has yet to be implemented.
Two steps forward
While the Act does not create the accountability mechanisms for the RCMP’s national security activities that are needed, it does contain two significant improvements over the status quo.
First, the new Commission will gain the ability to conduct broad reviews of RCMP policies, rather than having to wait for an incident to occur and a complaint to be filed. The old Commission could only conduct a review when asked to do so by the RCMP Commissioner or the Minister of Public Safety. The old Commission has only been asked to do so on a few occasions and has not done so on any national security-related issues.
Second, the new Commission will enjoy much broader access to information than the old Commission because it will have the discretion to decide which information is relevant to its complaints investigations and policy reviews. Currently, the RCMP Commissioner is responsible for determining which information is relevant, a power which several Commissioners have used to deny the Commission access to information on many grounds, including information related to national security. This has been a significant barrier to the old Commission investigating complaints arising from national security investigations.
These changes will bring the new Commission’s powers more in line with those enjoyed by Canada’s other intelligence accountability bodies, the Communications Security Establishment (CSEC) Commissioner, who oversees Canada’s signals intelligence and cybersecurity agency, and the Security Intelligence Review Committee, which scrutinizes CSIS’s intelligence gathering activities.
Four steps back
However, there are several problematic features of the Act that will sharply limit the degree to which these changes will strengthen the new Commission’s ability to better hold the RCMP accountable for its national security activities. The result is that that the Act provides a framework for RCMP accountability that falls far short of the Arar Commission’s recommendations.
First, the Act places sharp limits on the new Commission’s ability to access information relating to intelligence and security matters, leaving the discretion in the hands of the RCMP Commissioner to provide access to this type of information. Although the Act provides an appeal procedure for the Commission’s chair to ask a former judge to review its request for sensitive information if it is denied by the RCMP Commissioner, that procedure would be costly and time-consuming for the new Commission to pursue, given its limited resources compared to the RCMP. The result is that new Commission will still face major obstacles when it comes to investigating national security activities.
Second, the Act also limits the new Commission’s ability to review complaints arising from “covert operations”, a term which is not clearly defined in the Act, but presumably incorporates a wide range of tactics used in national security investigations. This provision too seems very likely to prevent the new Commission from investigating any more national security-related complaints than can the old Commission. SIRC, which is responsible for investigating complaints arising from CSIS’ activities, is under no such constraint.
Third, the Act also grants the RCMP Commissioner the wide power to unilaterally suspend the new Commission’s proceedings, including general policy reviews, if they could compromise on-going investigations. This too could be used to disrupt nearly any national security-related complaint investigation or policy review since the RCMP Commissioner could argue that the new Commission looking into a complaint relating to a tactic used in a national security investigation could compromise another investigation in which the same tactic is being used. Neither the CSEC Chief or the CSIS Director have any such power when it comes to their agencies’ accountability bodies.
Finally, the Act makes no provision for the new Commission to work with the CSEC Commissioner or SIRC to investigate complaints arising from joint operations between the RCMP and CSEC or CSIS or to review the agreements and policies governing these operations. Given the growing importance of these joint operations as demonstrated by recent revelations relating to CSEC’s metadata collection program, and the two alleged terror plots in British Columbia and Ontario foiled by Integrated National Security Enforcement Teams (INSETs), which incorporate both CSIS and RCMP personnel, the lack of such a provision will keep the new Commission from fully being able to scrutinize the RCMP’s national security activities.
A missed opportunity
As a result of the constraints that it places on the new Commission, the Act does not represent much of an improvement to the RCMP’s accountability for its national security activities. The federal government missed a tremendous opportunity to bring the RCMP’s accountability arrangements fully in line with those of Canada’s main intelligence agencies. The result is that more than a decade after the rendition of Maher Arar, there effectively exists no improved accountability to ensure that there are no more kidnappings to torture and other human rights violations issuing from national security operations.
Patrick F. Baud is an incoming master’s student in political studies at Queen’s University. He graduated with high distinction from the University of Toronto, Victoria College, where he wrote his senior thesis about the need to strengthen RCMP accountability for its national security activities. He writes at http://afewacresofsnow.net/. Baud’s senior thesis supervisor, Kent Roach, a law professor at the University of Toronto, served on the research advisory committee for the Arar Commission from 2004 to 2006.