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Commission of Inquiry into the actions of Canadian officials in relation to Maher Arar

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I. Introduction

I. The British Columbia Civil Liberties Association (www.bccla.org)

The B.C. Civil Liberties Association (the “BCCLA” or “Association”) is Canada’s oldest active civil liberties organization. The mandate of the BCCLA is to promote, protect and extend civil liberties and human rights in British Columbia and Canada. In furtherance of our mandate, the BCCLA undertakes public education, complainant assistance, law reform work and, occasionally, litigation. More information about the BCCLA, including many past positions with respect to civilian accountability for police and intelligence agencies, can be found at www.bccla.org.

With over forty years of work on protecting civil liberties in Canada, the BCCLA has developed a noted expertise in a variety of areas including national security and intelligence. The details of that experience formed the basis for our application for intervenor status before the Honourable Justice Dennis O’Connor, Commissioner (“Commissioner O’Connor”), Commission of Inquiry into the Actions of Canadian Officials in Relation to Maher Arar (the “Arar Commission”). For greater details regarding our experience and work in the area of national security and security intelligence including matters regarding the Canadian Security Intelligence Service (CSIS) and the Security Intelligence Review Committee (SIRC), please see our application for intervention.[1] In granting the BCCLA intervenor status in the Factual Inquiry and funding for its intervention, Commissioner O’Connor stated: “I was very impressed with their presentation and their history of protecting civil liberties in a national security context.” [2]

In addition to our work regarding national security and security intelligence, the BCCLA has extensive experience in working to promote police accountability. We do so in four ways. First, the BCCLA provides direct assistance to police complainants or prospective complainants.[3] Second, the BCCLA sometimes acts as police complainant in its own right – most often on matters of policy but sometimes with respect to conduct. Third, the BCCLA works via law reform to enhance systems for police accountability at both the provincial [4] and federal [5] levels. In this capacity, the BCCLA has made many submissions to elected representatives at the provincial and federal levels to reform a police complaints process. For example, in 2002, the BCCLA wrote the then Solicitor General Lawrence MacAuley to urge reforms to the Royal Canadian Mounted Police Act to enhance the powers of the Commission for Public Complaints Against the RCMP (the “CPC”) given the new authority and extra resources being given to the RCMP to undertake national security work in the post September 11 era. The Minister declined to adopt our recommendations for reform, which included new audit powers for the CPC. The BCCLA also wrote to Minister MacAuley in 1999 calling for overhaul to the system for complaints against the RCMP. Copies of our letters to Mr. MacAuley are attached as Appendix ‘A’ to this submission. Finally, the BCCLA will sometimes go to court to further police accountability via civilian oversight/review.

It is with this direct experience regarding police accountability in hand that the BCCLA makes this submission with respect to the Policy Review of the Arar Commission. In doing so, we are also mindful of the mandate of the Arar Commission’s Policy Review and the consultation and background documents released by the Commission to focus discussion regarding the Policy Review. The BCCLA found the consultation and background documents to be of great assistance in preparing our submission. The Arar Commission’s Policy Review mandate is stated as follows:

“to make any recommendations that he considers advisable on an independent, arm’s length review mechanism for the activities of the Royal Canadian Mounted Police with respect to national security…” [6]

The BCCLA has also had the benefit of reviewing other key interested parties’ submissions. Where we believe it is relevant to submissions we make, we make particular reference to other parties’ submissions. While other parties will not have had the same benefit of reviewing our submission, our submission will be available through our website (www.bccla.org). We invite other parties to respond to any arguments or submissions that we make. We thank the Arar Commission for this opportunity to comment and we look forward to further dialogue with the Commission and other parties regarding how best to fulfill the Commission’s Policy Review mandate.

The BCCLA submission will be divided into seven sections: Introduction, Summary of Key Recommendations, Current Challenges for Review of the RCMP’s National Security Activities, the BCCLA’s Recommendations for New Review Mechanisms, Enshrining a Principle of Openness in the Review of National Security Activities, Recommitting to Oppose Torture and a Conclusion.

II. Summary of Key Recommendations

The BCCLA recommends that:

(1) the Arar Commission and the government of Canada recognize and rectify the RCMP’s resistance to police accountability via a review mechanism,

(2) the government of Canada create a National Security Review Committee that has jurisdiction and adequate authority to review all federal and provincial agencies engaged in national security work,

(3) the government of Canada create an Office of the Civil Liberties Ombudsman to promote civil liberties, the rule of law and Charter values by reviewing the work of the National Security Review Committee, reviewing complaints and providing advice regarding law reform,

(4) the principle of openness be enshrined in the legal regime for a review mechanism of national security work, and

(5) the Arar Commission reaffirm the government of Canada’s commitment to oppose torture and propose reforms to ensure that all Canadian officials neither engage in torture nor are complicit in facilitating the torture of any person.

III. Current Challenges

The BCCLA recommends that the Arar Commission and the government of Canada recognize and rectify the RCMP’s resistance to police accountability via a review mechanism.

The BCCLA submits that the first challenge faced by the Arar Commission with respect to its Policy Review is to identify the challenges and barriers that exist to establishing such a successful review mechanism for the RCMP’s national security activities. The BCCLA submits that there are significant challenges to recognize and meet to ensure that any new mechanism for review of the RCMP will have a good chance at success.

The BCCLA believes that there are two primary barriers that must be recognized and addressed before determining what would be the best system for review. First, the BCCLA believes that there is significant evidence of RCMP resistance to civilian review. Second, there are significant gaps created by a review system that depends solely upon complaints given current barriers to public access to a complaint system.

1. RCMP Resistance To Police Accountability via Civilian Review

(a) Evidence of Resistance

The BCCLA submits that the RCMP currently demonstrates a resistance, and at times antipathy, to civilian review in the form of the Commission for Public Complaints Against the RCMP. While not absolute – the RCMP appears willing to accept a considerable number of recommendations by the CPC – the level of resistance is significant and unpredictable. The BCCLA believes that this resistance significantly undermines effective civilian review at the present time. This resistance/antipathy presents the singular most important challenge to ensuring that the RCMP remains under the direction of and accountable to civilian authorities. It is a resistance that must be overcome if there is going to be effective RCMP accountability in all the RCMP’s policing activities including national security. Whatever the reforms ultimately recommended by the Arar Commission and adopted by the government, these reforms will miss their mark if this resistance is not recognized. Legal and extra-legal measures must be taken to overcome this resistance.

Before discussing the possible causes and nature of this resistance, it is important to establish the basis for the claim of RCMP resistance to civilian review. The BCCLA has both its own experience with the RCMP in the complaint process and the submissions of the CPC to relate as evidence of the challenge of RCMP resistance to civilian oversight.

In 2003, the BCCLA, in partnership with the Canadian Civil Liberties Association, sought to intervene in a matter before the Federal Court of Canada (Trial Division) in which the CPC petitioned for disclosure of all relevant information regarding a complaint pursuant to paragraph 45.41(2)(b) of the Act. The BCCLA and the CCLA were unsuccessful in their intervention application. The CPC was unsuccessful at trial and is now appealing to the Federal Court of Appeal. The specifics of this case are also referred to in the submission of the CPC. [7] We will not repeat them in detail here.

However, it is important to emphasize how this case is illustrative of the difficulties the CPC has in pursuing its statutory mandate of effective civilian review of the RCMP. First, without complete access to all information, especially highly relevant information, the CPC will be obstructed from achieving its statutory mandate to achieve civilian review. Second, the trial court noted that the RCMP’s objection was not that disclosure to the CPC would compromise the confidentiality of the informant information or make law enforcement more difficult. Rather, the court understood that the RCMP’s position was based on pure legal technicalities: the law provided for the RCMP alone to determine when information would be disclosed to the CPC. Third and quite inexcusably in our view, the RCMP challenged the CPC’s authority to mount a legal challenge to the RCMP’s refusal to provide all information relevant to the complaint.

Given that the information sought was confidential informant information, the BCCLA submits that there is a formidable challenge to ensure that the RCMP discloses highly confidential national security information in a future review mechanism for national security activities.

The submission of the CPC provides many other examples of the resistance of the RCMP to civilian review in the context of disclosure of relevant information to the CPC.[8] Given the mandate of the CPC, its relationship with the RCMP and its direct experience in working to secure RCMP accountability through its civilian oversight role, the Arar Commission must give particular weight to the submission of the CPC on this point.

The BCCLA would also like to relate a recent example of our experience with RCMP resistance to civilian review in recent complaint that we filed with the CPC. In December 2004, a person was shot and killed by an RCMP officer near Vanderhoof , British Columbia. The BCCLA received many media calls seeking comment. In order to ensure adequate civilian review of this critical incident, the BCCLA decided that it would be appropriate to make a complaint to the CPC that the RCMP officer(s) involved acted inappropriately.

In response to our complaint, by way of a letter dated February 21, 2005 from P. Darbyshire, Inspector and Officer in Charge of the Internal Affairs Unit, ‘E’ Division of the RCMP, the RCMP summarily dismissed the BCCLA’s complaint. The RCMP justified its decision by referring to paragraph 45.36(5)(c) of the Royal Canadian Mounted Police Act (the “Act”), and by arguing that (a) a criminal investigation was ongoing, (b) a Commissioner Officer was conducting an “independent” review of the incident and (c) a Coroner’s Inquest had been scheduled. This letter is attached as Appendix ‘B’.

The BCCLA has appealed to the CPC under the provisions of the Act on the basis that, while it may be appropriate to hold our complaint in abeyance while the internal review of the incident is complete, it is wrong and disrespectful of the complaint process and civilian review to summarily dismiss our complaint. The BCCLA takes the view that a criminal investigation will assess the RCMP officer’s conduct against a different legal standard (proof beyond a reasonable doubt) than an allegation of misconduct (civil standard of proof – balance of probabilities). Neither the BCCLA, nor the public, will be provided with a copy of the criminal investigation report. Furthermore, a jury in a Coroner’s Inquest is specifically excluded from making any findings regarding legal responsibility for a death or expressing any conclusion of law regarding responsibility for a death. [9] In other words, a Coroner’s Inquest will specifically avoid assessing RCMP responsibility of the death of the person. In our view, it would have been more appropriate for the RCMP to refer our complaint to an internal investigator for review and processing. A copy of the BCCLA’s letter to the CPC is attached as Appendix ‘C’.

The BCCLA believes that the RCMP’s summary dismissal of our complaint is inappropriate. But more relevant to this submission, the BCCLA submits that it is a specific example of what we consider to be more broad based problem of the RCMP’s attitude toward civilian review. If ever there should be civilian review of RCMP conduct it is in the case of a death or serious injury of a person while in custody of or being pursued by the police. The BCCLA is on record with the CPC as encouraging them to conduct a review of all such cases, whether or not a complaint is made from the public. They currently have no such policy.

Finally, we believe that it is instructive to contrast the substance and tone of the submissions of the RCMP with that of CSIS. The RCMP submissions emphasizes that there is much civilian review and accountability of the RCMP already and that caution should be exercised before adding more:

“The demands on RCMP personnel to meet the requests of additional review processes may adversely impact the benefits from having those investigators working to prevent terrorism, potentially causing investigational effectiveness to crumble under the weight of review.” [10] [Emphasis added]

Far from embracing the idea that more robust civilian review would actually be in the public interest and likely make the RCMP a better organization, there is a certain air of resignation in the RCMP’s submission that there will likely be some changes but that their goal is to limit civilian review as much as possible.

In stark contrast, the CSIS submission reads as if it was penned by SIRC. The BCCLA believes that it reflects the maturation of an over twenty year relationship in which CSIS management understand that a constitutional democracy like Canada’s, where the rule of law governs, requires intense accountability of agencies of the state that have the most significant intrusive powers into Canadians’ lives. That said, we expect that CSIS and SIRC still have their difference and that SIRC remains vigilant in ensuring CSIS respects the rule of law.

In closing on this issue, the BCCLA submits that the evidence clearly indicates that resistance to civilian review is deeply embedded within the culture of the RCMP.

(b) What To Do About the RCMP’s Resistance to Civilian Review?

Why is the RCMP resistant to civilian review and what can be done about it? The BCCLA is not in the best position to ascertain answers to these critical questions. The Arar Commission is in a much better position to undertake this assessment. The Commission must find answers to these questions if a new system for civilian review and oversight is going to be effective. It is the submission of the BCCLA that if there is continued resistance to mechanisms of control and accountability by civilian authorities to the work of the RCMP, then any new system of civilian review and oversight will ultimately be unsuccessful regardless of its legal structure.

For now, the BCCLA will speculate on what some of the answers to these questions might be.

There are likely a number of plausible explanations for the RCMP’s resistant to civilian review. First, this state of affairs might be the result of poor working relationships between individual personalities at any level within the RCMP and CPC. Antagonism in these relationships will lead to less cooperation between the agencies. The BCCLA is not in a position to comment with any certainty about the nature of these relationships. With respect to line staff, there are simply too many relationships between RCMP and CPC staff to judge. With respect to the relationship between RCMP Commissioner Zaccardelli and CPC Chair Shirley Heafey, we again are not in a position to judge. We have reviewed the submissions of the CPC which includes correspondence between the two leaders. We think it is fair to characterize this correspondence as strained. Our reading of this correspondence suggests frustration, expressed professionally and appropriately, by Ms. Heafey in regard to Commissioner Zaccardelli’s resistance to civilian review. While one can not expect that the leaders of these two agencies will always agree, we would expect their interactions to remain professional and reasoned.

Our first point leads to our second. The RCMP’s resistance, or acceptance, of civilian review and oversight, will very much be guided by its leadership. The RCMP Commissioner and other leaders within the organization must demonstrate openness and acceptance of civilian review and oversight and be forceful in requiring RCMP officers and staff down the line to also accept it. Cultural resistance to oversight and review will be set to a significant degree by the messages members of the organization receive from its leaders. We note with particular concern the Interim and Final Reports from the Chair of the CPC as set out in Appendix B of the CPC’s submission to the Arar Commission as providing evidence of concern regarding the RCMP’s leadership’s stance towards civilian review.

Aside from their own attitudes, the RCMP Commissioner and other leaders in the organization must ensure that those in charge of internal affairs at the RCMP are willing to work with a civilian review agency. Thus, key positions in internal investigations must be staffed with officers who are supportive of or at least accepting of, rather than resistant to, civilian review.

We note that even with the right leadership, it is difficult to turn around a large ship quickly if there is wide scale cultural resistance to civilian review within the RCMP. The RCMP has thousands of members spread throughout Canada. To the extent that resistance to civilian review and oversight is pervasive throughout all levels of the RCMP – and we believe that it is – it will take time and considerable effort to inculcate an ethic and cultural attitude with the RCMP that not only accepts but embraces the concept of civilian review. The RCMP and all its members from top down must sincerely believe that civilian review and oversight will make it a better police agency rather than being a process to resist.

Third, resistance to review and oversight might in part be caused by inadequate legal authority vested in the review agency as articulated in legislation and policy. With respect to the CPC’s current difficulties in accessing relevant information to review complaints, that appears to be the case. Unless and until the matter is satisfactorily settled in court or the Royal Canadian Mounted Police Act is properly amended, the CPC will not be able to achieve its mandate whether in the context of the RCMP’s national security activities or any other RCMP policing matter.

The BCCLA notes that the RCMP Act was passed in 1988 and has yet to undergo a thorough legislative review. Irrespective of the Arar Commission’s mandate with respect to national security work of the RCMP, the Act is now outdated and inadequate. It needs to be overhauled to ensure there is effective civilian review in all types of work undertaken by the RCMP.

2. The Inadequacy of a Complaint Based Model

The BCCLA submits that an effective and comprehensive system for police oversight and accountability will require a variety of both pro-active and reactive mechanisms for detecting and correcting problems with police conduct and policy. A system of review that responds simply to complaints generated from the public, while important, will only provide part of the solution to effective civilian oversight and review.

In its work with police complainants, the BCCLA has identified a variety of barriers to access for prospective complainants. These barriers include:

(i) Linguistic, Educational and Literacy Obstacles: Prospective complainants may not have adequate educational backgrounds to navigate or understand the complexities of complaint system. These educational challenges may include problems of inadequate literacy or linguistic capacity in English.

(ii) Cultural Experience: Prospective complainants may come from ethnic and cultural backgrounds that harbour significant distrust of police. Most current models for police complaint procedures require police to investigate complaints in the first stage (as with the RCMP) which creates a significant disincentive to proceed with a complaint. These prospective complainants often fear police reprisals for making complaints.

(iii) Legal Status: Some prospective complainants are refugee claimants, landed immigrants or may have no legal status at all in Canada and are thus reluctant to jeopardize their current and future legal status by making a complaint. The problems with the security certificate process under the Immigration and Refugee Protection Act provide even greater incentive for non-citizens to avoid all contact with the police.

(iv) Inadequate Advocacy or Assistance Resources: There are relatively few organizations in Canada that provide expert assistance or advocacy for police complainants. The BCCLA is unaware of any legal aid programs that provide assistance or representation to police complainants. The BCCLA is one of a handful of organizations that provide direct assistance to complainants. With a lack of assistance or advocacy, prospective complainants simply do not register complaints and some complainants simply abandon their complaint when faced with police intransigence or perceived unfairness in the investigation of their complaint.

In the context of the Arar Commission’s Policy Review and the work of the RCMP in the context of national security, a special mention must be made of the cultural sensitivities of Canadians, landed immigrants or others of Muslim, Arab or other religious/ethnic minority backgrounds. Since September 11, 2001, members of these communities have faced heightened scrutiny by members of the state security apparatus (CSIS, RCMP) and the public in general. We expect the Arar Commission to hear from others more expert than the BCCLA in this regard.

However, the BCCLA would like to relate its experience in seeking to work with the Muslim community in recent years. Shortly after September 11, 2001, the BCCLA was invited to speak to members of the Muslim community at the Lower Mainland’s largest mosque. In 2004, the Association launched its Muslim Voices project. [12] This project sought to work with leaders and organizations in the Muslim community to assist members of that community who had concerns about inappropriate treatment by state agencies or the public generally. As part of this project, BCCLA representatives visited several mosques throughout the Lower Mainland to distribute literature, introduce the BCCLA to the community and offer our services to assist anyone who had concerns. During these visits, we received considerable information about perceived mistreatment but few individuals sought specific assistance to file a formal complaint. This project has been an important learning experience for the Association in understanding the diversity within the community. We have also become more attuned to the considerable barriers that exist for individuals in the community to come forward to seek assistance even when they have legitimate grounds for concern. In a context in which there is much fear about guilt by mere association, however tenuous, and sleeper cells, it is likely that members of the community are simply not identifying themselves as possible victims of inappropriate or questionable behaviour because they do not wish to be identified within their own community as someone who has been targeted by the RCMP or CSIS or another national security agency as a person of interest. Through a poster campaign and other efforts, the BCCLA will continue to work with the Muslim community to ensure that its members are free of stereotyping or generalized suspicion of terrorist activity merely because they are Muslim.

In addition to complainant sensitivities, the very nature of the RCMP’s national security work will inevitably result in fewer public complaints because of its secretive nature. As noted in the Arar Commission’s own documents prepared as part of this Policy Review, “a significant portion of this work [national security activities of the RCMP] is unlikely to be seen by anyone outside the policing or national security intelligence community.” [13] National security work and intelligence gathering activities mostly do not end up in court, much information is not disclosed publicly and even if there is some sort of state action (e.g. a security certificate issued under the Immigration and Refugee Protection Act), members of the public subject to national security investigations or intelligence investigations will likely never know of the particular conduct of the RCMP or CSIS due to national security confidentiality.

In sum, for all these reasons, complaints will never be an adequate system for civilian oversight and review with respect to the RCMP.

3. Police Independence, Police Accountability

The BCCLA wishes to comment here briefly on the notion of “police independence”. The BCCLA submits that there is an important distinction between improper interference by elected representatives with the police function to uphold the rule of law and appropriate, indeed necessary, direction by elected representatives to the police to discontinue policies and practices that undermine the rule of law or are illegal.

We believe that there is broad consensus at every level that there be must safeguards to prevent political representatives from interfering with specific criminal investigations when motivated by personal or partisan political interests or that would have the effect of being improper for personal or partisan political interests. We believe that it is this principle that animates the conception of “police independence” which has been endorsed in R. v. Campbell and Shirose. [14]

This conception of police independence however does not preclude political representatives and indeed members of the Executive branch of government, especially the Minister responsible in the case of the RCMP, from providing appropriate direction to the police. Circumstances may well arise in which the public has a reasonable expectation that elected representatives would direct the police to discontinue practices that are illegal.

For example, some years ago, the Vancouver Police Department (VPD) instituted a program of intrusive searches for alcohol at SkyTrain stations in Vancouver during evenings of the city’s fireworks festival. The police were particularly concerned that with large crowds, alcohol could be a significant contributing factor in causing a riot. This policy was instituted not long after the Stanley Cup riots of 1994. Acting on complaints from the public and the BCCLA, the Vancouver Police Board, the civilian authority most akin to the Minister of Public Safety and Emergency Preparedness in respect of the RCMP, reviewed the VPD policy and came to the conclusion that the VPD’s policy promoted unlawful and inappropriate conduct by its members. It amended the policy and abolished the practice of alcohol searches at SkyTrain stations.

This kind of direction in policy and system wide operational matters, as opposed to direction in any specific criminal investigation, is rare yet entirely appropriate. Indeed, the BCCLA believes that there should be more oversight with respect to political masters giving appropriate direction to the police. Rather than being discouraged or prohibited in law, law and policy should promote this kind of accountability. We encourage the Arar Commission to understand and highlight this distinction in its recommendations. Given the nature of national security work, which often operates behind a veil of secrecy away from the glare of public scrutiny or the courts, this type of accountability is all the more critical.

IV. BCCLA Proposals For Reform

1. National Security Review Committee

The BCCLA recommends that the Arar Commission recommend that the government of Canada create a new National Security Review Committee (NSRC)) that has jurisdiction and adequate authority to review all federal and provincial agencies engaged in national security work.

(a) National Security Review Committee Jurisdiction and Authority

The NSRC would have the following characteristics and powers:

Officer of Parliament: As an Officer of Parliament, the Chair of the National Security Review Committee would report directly to Parliament rather than just to a Minister responsible. This would ensure greater independence and is consistent with other review agencies including the Privacy Commissioner of Canada, the Information Commissioner of Canada and the Auditor General of Canada. This would also be consistent with the fact that this Committee would review the national security work of a variety of federal agencies rather than just one agency or Ministry. The CPC and SIRC currently only report to the Minister of Public Safety and Emergency Preparedness Canada.

National Security Jurisdiction: The National Security Review Committee would have the mandate to review not only the national security work of the RCMP and CSIS, but also the variety of other federal agencies that are engaged in national security work including but not limited to: the Canadian Border Services Agency, Citizenship and Immigration Canada, the Department of Transport, Department of Foreign Affairs, and the Financial Transactions and Reports Analysis Centre of Canada.

Members and Staff: The most important appointment will be the Chair of the National Security Review Committee. Like SIRC, a committee would normally include other appointments though the BCCLA has no strong position on whether a number of members need be appointed. However many appointments are made, they should be non-partisan, made by the Prime Minister’s Office and vetted by an all-party Parliamentary National Security Committee. The appointment process should be transparent and qualifications for membership should be published. As staff of the National Security Review Committee will do the bulk of the detailed work of the Committee, they will need to be experts in their field, highly trained and motivated. The NSCR should publish the names and biographies of its staff in annual reports and on the website.

Access to Information and Subpoena Powers: Much like SIRC, the National Security Review Committee and its staff would have legal authority to have access to and receive copies of all information in the custody or control of the agency subject to review. In addition to complete document access, the Committee would have the authority to subpoena any individual to compel testimony or produce documents. In order to ensure the security and integrity of information subject to national security privilege, the Committee and its staff would have top level security clearance and other safeguards.

Authority to Receive, Initiate, Investigate and Determine Complaints: The National Security Review Committee would be responsible for all aspects of complaints including receiving, initiating, investigating and determining the merits of a complaint. With respect to investigations, the Committee would have the authority to delegate an investigation to the agency subject to review. Upon review of the findings and conclusions of the internal investigation, the Committee could accept the conclusions, undertake its own investigation or hold a hearing with respect to allegations of misconduct. After a hearing, an arbitrator would make findings with respect to misconduct and decide upon an appropriate level of discipline/corrective action. [15]

Public Education: NSRC should conduct an ongoing and robust program of outreach informing the public about its mandate and authority including the complaint process.

Mandate to Audit: We are in agreement with the Canadian Civil Liberties Association that, the National Security Review Committee would not only have the authority to undertake proactive audits of the agencies subject to its jurisdiction, it would have a legislative obligation to undertake such audits. Given the nature of national security work, the BCCLA expects that much of the work of subject agencies will go undetected by citizens and individuals. Unlike, RCMPs general policing work, there will be less direct interaction with people. People subject to questionable practices may not be in a position to actually make a complaint. Therefore, NSRC must have audit authority. In order to achieve the audit mandate, the Committee would have to receive adequate resources to undertake this work. It is the experience of the BCCLA that when review agencies are not adequately resourced, responsibilities and authority that require pro-active measures often get left behind while the organization reacts and responds to those responsibilities it must meet. A legislative obligation to undertake and report on audits as well as adequate resources to achieve this mandate would go a long way to rectifying this problem.

The BCCLA submits that a new NSRC would replace the current SIRC. The BCCLA takes no position on how best to create NSRC but we would expect that current SIRC Committee members and staff would be one prime source, among others, for qualified candidates for NSRC personnel.

(b) Rationale for Single Review Agency for All National Security Work

In making our recommendation for a National Security Review Committee, the BCCLA considered that two factors were of particular importance: (1) the fact that national security intelligence and investigation work is being done by a variety of federal agencies, in cooperation with some provincial agencies, spread over various Ministries and (2) the significant degree of integration of this work between agencies and personnel. Given these factors, the BCCLA believes that a system for review of national security work will require an agency that has jurisdiction to overcome institutional boundaries.

Some suggest that the McDonald Commission envisioned a neat distinction between CSIS undertaking intelligence work in the national security field while leaving the RCMP to be responsible solely for undertaking criminal law enforcement investigations regarding national security offences. In this scheme, the RCMP would not conduct security intelligence work itself. Even if that reading of the McDonald Commission’s recommendations is correct (some suggest it is not), the BCCLA always expected CSIS and the RCMP to be working so closely that any fine distinction between the two agencies’ jurisdictions would ultimately become blurred. After all, what kind of case would not be a matter of crime prevention/detection concern legitimately within the purview of the RCMP if the matter raises a threat to national security? We doubt the RCMP was ever ready to simply leave all the intelligence detecting work they did prior to the McDonald Commission to CSIS and wait for their phone call. The rise of “intelligence led” policing by the RCMP in national security work has clearly confirmed that the RCMP have reoccupied this field, if they actually ever left it at all. This current state of affairs is further confirmed by the submission of other parties and intervenors, particularly the submission of the RCMP itself. [16]

Aside from the fact that the RCMP is clearly undertaking intelligence related work in the area of national security, it is very difficult to discern the boundaries between where the work of CSIS ends and the RCMP begins. Some of the very limited public testimony regarding the distinction between the work of the RCMP and CSIS is revealing in this regard. [17]

But in addition to the RCMP and CSIS, a raft of other federal agencies also have their fingers in the national security intelligence/investigation pie. Agencies like the new Canadian Border Services Agency, Citizenship and Immigration Canada, [18] Transport Canada, the Department of Foreign Affairs, the Financial Transactions and Reports Analysis Centre of Canada, not to mention provincial police and municipal police forces involved with RCMP led Integrated National Security Enforcement Teams (INSETs), are all now engaged in national security intelligence and investigation. While these agencies will have MOUs and policy with the RCMP and CSIS in terms of cooperation and sharing information (or should have), the boundaries where one agency’s work begins and ends vis-à-vis another’s is increasingly difficult to determine. In such circumstances, it is imperative that a review agency be able to straddle those boundaries wherever they may exist.

CSIS and the RCMP share personnel. Where an RCMP officer is seconded to CSIS and then is the subject matter of a complaint or investigation, who should review this officer’s conduct? While technically an RCMP officer, CSIS will understandably be reluctant to open its files and cooperate with an investigation by the CPC. But is it appropriate for the SIRC to be making determinations about whether an RCMP officer seconded to CSIS has committed misconduct and what the appropriate corrective action should entail? A single review agency overcomes this serious problem.

CSIS and the RCMP share information as do other agencies involved in national security work. A civilian review agency responsible for ensuring accountability in the area of national security must be able to follow the thread of evidence either forward to its conclusion or back to its inception regardless of whether it originated with the RCMP, CSIS or some other agency. This requires that the civilian agency have access to information for all agencies relevant to a particular matter or file. Just consider the problem if the Arar Commission was limited in its jurisdiction to consider information held only by the RCMP. Indeed, the Arar case simply illustrates in stark relief the fact that any national security matter will cut across agency lines. A review agency will need to go where the evidence takes it rather than bumping into jurisdictional boundaries that frustrate its enquiries. National security review requires a single agency to cover all federal and provincial agencies engaged in national security work.

There are a variety of other new initiatives post September 11 that indicate that national security work is becoming more and more integrated across institutional lines. For example, the RCMP along with other agencies including provincial and municipal police created Integrated National Security Enforcement Teams (INSETs). INSETS utilize personnel from across law enforcement and other agencies (including CSIS) to provide front line national security work (intelligence, prevention and investigation). Another example is the work of Integrated Border Enforcement Teams (IBETs) dealing with international borders.

In addition to issues regarding the number of agencies involved in national security work and the degree of integration across agency boundaries of that work, there are other reasons to rationalize a system of civilian review in one office. First, the standards of review and their equal application to all personnel engaged in national security activity should be harmonized across agencies. Second, the RCMP would not be singled out for special attention in this reform measure, nor should it be. Third, a single review agency would avoid jurisdictional rivalries or conflict between different review agencies such as the CPC and SIRC. Finally, and critically, a single review agency will be in a much better position to survey the entire landscape regarding national security work with a review to ensuring adequate accountability. Whereas the perspective of the CPC or SIRC will be understandably focused solely on the agency they review, they will miss the “big picture” that a single review agency would be able to provide to identify issues of concern that cut across jurisdictional boundaries.

The BCCLA notes that even with NSRC, the CPC would continue to provide civilian review with respect to all other RCMP policing. We acknowledge that creating two civilian review systems for the RCMP could pose a challenge. We would expect that the RCMP would rather be subject to only one system of review. However, taking into consideration all the factors listed above, from the perspective of civilian review of national security work, it would be more prudent to proceed with reform in line with our recommendations. We also note that under a system as we propose, the National Security Review Committee would be able to call upon the specific expertise and knowledge of the CPC to assist in the Committee’s work regarding the RCMP.

(c) Civilian Review to Make Determinations Regarding Misconduct

The BCCLA submits that the current system with respect to civilian review of the RCMP is deficient because the CPC has only limited power to make recommendations to the Commissioner of the RCMP and the Minister.

In the view of the CPC, this limited authority and the fact that the Commissioner of the RCMP rejected 25% of the critical findings of the CPC and 21% of its recommendations in 2003/04 is actually a sign of “healthy tension” and “true dialogue” between the RCMP and the CPC. [19]

The BCCLA respectfully disagrees. In our view, the best system for civilian review of past conduct requires the power for a civilian agency or an independent process with civilian adjudicators to make determinations with respect to the propriety of conduct. A system that permits the RCMP, or any service agency, to make final determinations with respect to the appropriateness of the conduct of its officers in particular circumstances is in fact the opposite of true civilian accountability of the police.

The BCCLA draws an important distinction here between determinations with respect to the propriety of specific conduct on the one hand and policy on the other. The BCCLA submits that the most appropriate body in which decisions with respect to policy must reside is with the Minister of Public Safety and Emergency Preparedness (formerly the Solicitor General) with respect to the RCMP or the appropriate Departmental minister. We base our position on the theory of responsible government in which Ministers of government have responsibility for the agencies under their direction and a responsibility to Parliament as a matter of accountability for those agencies. This latter notion is reflected in section 5(1) of the Royal Canadian Mounted Police Act and recent Ministerial Directions regarding the RCMP. [20] Thus, the Minister is responsible for setting broad policy under which the RCMP operates.

This distinction is also notable in legislation under the Police Act in British Columbia. Under this legislation, a complaint is classified as either a “public trust” complaint or “service and policy” complaint. The former deals with allegations of misconduct by specific police officers whereas the latter deals with complaints regarding service or policy. Whereas public trust complaints can lead to a hearing by an independent arbitrator for adjudication, policy complaints are ultimately left to the local government police board, a civilian oversight authority, to determine. [21]

That said, the BCCLA submits that the National Security Review Committee should have the authority to review and make public recommendations regarding policies of the RCMP and other agencies with respect to national security. The RCMP should be able to accept or reject such recommendations and indeed there may be a healthy tension here as suggested by the CPC as long as the final determination with respect to policy is made by the Minister as part of her responsibilities to direct the RCMP. In order to ensure that the Minister is held to account for policy decisions, the review agency must make its recommendations public via the Parliament of Canada. In turn, the Minister must have a legal obligation to respond publicly in Parliament to policy recommendations by NSRC.

The BCCLA notes that current provisions of the Royal Canadian Mounted Police Act do not provide for policy complaints unlike the B.C. Police Act. This absence may sometimes subject RCMP officers to unfairness in that they may be the respondent in a conduct complaint when in fact they are just following RCMP policy. This problem should be rectified both with respect to national security matters but also with respect to all policing undertaken by the RCMP.

2. Office of the Civil Liberties Ombudsman

The BCCLA recommends that the Arar Commission recommend that the federal government establish the Office of the Civil Liberties Ombudsperson (CLO).

(a) Jurisdiction and Authority for a Civil Liberties Ombudsman

The mandate and authority of the Civil Liberties Ombudsman (CLO) would include:

Mandate of the Civil Liberties Ombudsman: The mandate of the CLO would be to promote and protect civil liberties, the rule of law and Charter values in the context of national security.

Officer of Parliament: Like the National Security Review Committee, the Civil Liberties Ombudsman would report directly to Parliament in an annual report and in hearings with a Parliamentary Committee on National Security.

Advise the National Security Review Committee and Government: As an expert in civil liberties, the CLO would be able to provide advice and guidance to the NSRC in its work to review national security agencies as well as the government.

Audit the National Security Review Committee: The CLO would have access to all information and files of the NSRC. It would not have access to information directly from or contact directly with the RCMP, CSIS or other agencies providing national security work. While it may have informal discussions and meetings with these agencies, the CLO is not meant to regulate them directly but rather to be an additional check on the work of the review committee. As such, the CLO could make recommendations to the NSRC regarding the conduct of particular files both in an ongoing way in an advisory capacity or as an ex post facto review of files.

Review Complaints: On the request of government, by a request of a complainant or on its own initiative, the Civil Liberties Ombudsman would have discretion to review the substance of a complaint. To do so properly, it would have access to all relevant information regarding the complaint including the NSRC file and could direct NSRC to obtain further information from the agency subject to the complaint. After reviewing a complaint, the CLO would make recommendations to NSRC and/or government by filing a report with Parliament.

Law Reform: The CLO would be responsible for reviewing all proposed national security legislation by the federal government and making recommendations regarding law reform in the field of national security when it determines that it is appropriate to do so.

(b) Rationale for a Civil Liberties Ombudsman

By its very nature, national security intelligence and investigation work is shrouded in secrecy. The front line agencies that undertake this work understandably advocate for the utmost protection for national security and national security confidentiality. That is their mandate; they serve to protect. To properly review and obtain access to all classified documentation and information, review agencies naturally are also obliged to maintain this confidentiality. If one reads an annual report from SIRC, this need to maintain confidentiality of national security information is evident. While one has a general understanding of what issues are audited and reviewed by SIRC in a given year, SIRC’s public reports are short on details. In the world of national security, it is very much a “trust us” scenario both with respect to front line service agencies like the RCMP and CSIS and review agencies like SIRC. This is not so much a criticism as a recognition of the sensitive informational context of this particular field.

But in such a clandestine context, how can the public have confidence that the independent agencies set up to safeguard the rule of law and basic rights are doing their job? As noted, SIRC’s annual reports provide limited detail regarding SIRC’s review and CSIS’s work due to national security confidentiality. Subject to acceptance of our submissions in section V below, this may be a continuing barrier to ensuring transparency and public accountability even with a new National Security Review Committee. The problem with such limited disclosure of information is not only that the public is not fully informed about national security activities, it is not informed about the extent and nature of the review of those activities.

If there was a Parliamentary national security committee, this committee would be responsible for reviewing the reports of review agencies and holding hearings into their work and the work of national security agencies in general. But again, such a committee will hold much of those hearings in camera and operate under strict confidentiality. Furthermore, we would expect such a committee’s mandate to include ensuring Canada’s national security apparatus is functioning effectively. As such, this committee’s task will likely be as much an advocate for more national security as the agencies (RCMP, CSIS) themselves rather than an advocate for appropriate review of national security work.

Given the fundamental civil liberties as stake and the devastating impact errors by national security agencies may have on individuals, the BCCLA submits that a civilian review office or review by a Parliament committee on national security should be augmented with other checks.

Any watchdog that takes its mandate seriously will also be preoccupied with the question of who keeps an eye on them. For example, if one visits the website of the Office of the Auditor General, under the heading “What We Do”, one finds the category: “Who Audits the Auditor General?” The website then describes how the Auditor General is itself subject to accountability for the work it undertakes in furtherance of its mandate including meeting with parliamentary committees responsible for public accounts as well as initiating “quality assurance” reviews. [22]

Aside from needing assurances of a check on the watchdogs, one must ask who is advocating for civil liberties within the national security field. The metaphor of a “balance” between national security and civil liberties is often invoked. But to obtain a correct balance, there must be a counterweight. It is evident in today’s geopolitical context that the weight of national security is massive and that many powerful interests advocate for this side of the equation. In this context, is it reasonable to expect that review agencies like SIRC or the CPC can provide an adequate counterweight? The BCCLA’s experience is that review agencies tend not to operate as an advocate but rather try to strike the right balance.

It is important to pause to note concerns about “captured regulators”. A review agency like SIRC works closely with CSIS in a relatively obscure context which, because of its secretive nature, is not subject to the normal scrutiny with which Parliament, the media and ultimately the public is accustomed to in public affairs. There is always a danger for regulators to tend to see the world more like those they regulate. This danger is more significant in the cloistered environment of national security. The BCCLA is not suggesting at all here that SIRC has failed in its mandate. Indeed, we are not in a position to judge not having access to all relevant information. But that is the point. No one is in a position to judge because of the inaccessibility of access to such information. The BCCLA and other Intervenors before the Arar Commission’s Factual Inquiry have some experience on this point. In such scenarios, it is wise to create as many checks and balances as reasonably feasible.

Given this environment, the BCCLA believes that it is time for the federal government to establish a watchdog whose primary mandate is to promote and protect civil liberties, the rule of law and Charter values, in the context of national security. Therefore, the BCCLA recommends the creation of the Office of the Civil Liberties Ombudsman to review the work of the National Security Review Committee.

We have outlined the jurisdiction and the authority of the Civil Liberties Ombudsman above. In particular we emphasize that it is body with recommendations powers that seeks to be an additional check on the review agency and thus vicariously on the RCMP, CSIS and other agencies engaged in national security activities. We have sought to structure our recommendations so that it is not a significant additional direct burden on these agencies.

But we wish to add one note about resources for the Civil Liberties Ombudsman. While the CLO must have adequate resources to do its job, the BCCLA is not recommending the creation of a new, large bureaucracy. The Office of the CLO should be relatively small and efficient. It will likely not have the resources to take on every possible civil liberties issue in the context of national security and thus will have to focus its resources on the greatest priorities. The BCCLA does not seek to add yet another significant layer of bureaucracy but we believe that creating an office that has a unique role to safeguard civil liberties is an idea whose time has come.

V. Principle of Openness in Review of National Security Activities

The BCCLA recommends that the principle of openness be enshrined in the legal regime for a review mechanism of national security work. This principle would take effect in a presumption that the review of the national security activities of the RCMP, CSIS and other agencies would seek to provide Canadians with detailed information regarding audits and review by the National Security Review Committee unless the publication of such information could jeopardize national security. The government would bear the onus of proving how publication could jeopardize national security.

The work of the BCCLA is rooted in a commitment to the grand and unfinished experiment of democracy. We take this to be the notion that we can live together as fellow citizens under a government that answers to a sovereign people, rather than to a king or council.

The idea of democracy involves much more than the bare right to vote. In a robust democracy, each constituent should have the right to contribute to the governance of the collective to the extent that this right is compatible with the same right of all other constituents.

Information about public affairs is vital to the exercise of our right to contribute to governance. To engage politically, to argue and debate, to think and dispute together, to add our voices to the democratic clamour, we need as much information as can possibly be made available. We need to know what is done by government because it is done in our name and because we bear ultimate responsibility.

The dissemination of information to the public is in some ways already a legislative priority. For example, provincial and federal legislatures have relatively recently passed freedom of information laws, which (with some hotly contested exceptions) allow citizens to request and receive information from government sources. We do not say that all access-to-information statues are ideal, but we are of the view that Freedom of Information rights are an ongoing source of democratic vitality.

In addition to freedom of information laws, the Courts have long been vigilant in upholding the principle of openness, which ensures that courtrooms remain open to press and public. The open courtroom principle, which antedated the Canadian Charter of Rights and Freedoms, was elevated to constitutional status by section 2(b) of the Charter: the right to free expression and freedom of the press. As noted by La Forest, J. in CBC v. New Brunswick:

“The principle of open courts is inextricably tied to the rights guaranteed by s.2(b). Openness permits public access to information about the courts, which in turn permits the public to discuss and put forward opinions and criticisms of court practices and proceedings…. The full and fair discussion of public institutions, which is vital to any democracy, is the raison d’etre of the s.2(b) guarantees.” [23]

The open courtroom principle is not an ironclad rule. Rather, it is a presumption that a court proceeding will be open to the public unless there are compelling reasons why it should not be open to the public.

As set out in the Supreme Court of Canada decisions in Dagenais [24] and R. v. Mentuck [25], a limit on the open courtroom, such as a publication ban, should only be ordered to prevent a serious risk to the administration of justice, when other measures will not prevent that risk, and when the benefits of the ban outweigh the risks. In the recent case Re Vancouver Sun, the Supreme Court of Canada held that the presumption of open courtrooms applies even in the context of an investigative hearing under the anti-terrorism provisions of the Criminal Code. [26]

In our view, there is no principled reason why the open courtroom principle, designed to promote full and fair discussion and criticism, should not be expanded to embrace a more general principle of open governance. The BCCLA believes that the principle of open governance requires that all information about public affairs should be made available to the constituents of this country unless: (1) the release of the information involves a serious risk; (2) measures other than state secrecy will not prevent the risk; and (3) the expected risk of releasing the information exceeds the expected benefit of its release.

In our submission, this principle of open governance should have as much currency in the area of national security as it has in any other area. Matters of national security are issues that are as critical if not more critical to the citizens of a country as other issues. That is not to say that there should be no state secrets — but only to assert that secrecy must be rigorously justified by the keepers of those secrets.

The principle of open governance does not create a binary choice for government. All secrecy, including state secrecy, is on a spectrum. At one pole, a true secret is known only by one individual. At the other pole, public information is available to all members of the public.

Public institutions can be located anywhere along the continuum of accountability. Institutions may be accountable directly to the public, to Parliament or its Committees, to semi-public Inquiries, to semi-secret bodies such as SIRC, or they may, as they are in an unknown number of cases, be entirely secretive and unaccountable to anyone.

The BC Civil Liberties Association urges the Arar Commission, in reaching its conclusions on issues of policy, to ensure that any recommendations for institutions comports to the greatest extent possible with the principle of open governance. Open governance is democratic in the most direct sense, in that the citizens have direct and unfiltered access to the information.

The Association appreciates that in some cases it may be considered necessary to create institutions that operate as a surrogate for the public by screening information in the public interest without providing the public direct access to information. Surrogate institutions are less desirable in that they represent a deviation from democracy — they are consequently more vulnerable to capture by and dependence on other institutions, and are less capable of adopting a multiplicity of perspectives that the public at large. While surrogacy and its accompanying institutionalized secrecy is sometimes necessary, it is certainly less desirable that direct democracy and open governance.

The BCCLA acknowledges that there may be a need for secrecy in certain defined cases or classes of cases. National security often involves clandestine activity, including activities which the public would consider desirable if we knew of them. Many of these activities would not succeed if their workings were exposed to the public.

However, the BCCLA would encourage the Commissioner to undertake a close analysis of the specific areas in which state secrecy may be justified. This is especially true when considering institutional mandates to report, including the critical issues such as the level of reporting detail and the identity of those to whom reports are provided. The BCCLA believes that democratic open governance and direct public accountability should rule unless otherwise proven.

The BCCLA recognizes that it may not be politically plausible to revamp existing systems of secrecy and partial accountability to conform entirely to the values outlined above. We are acutely aware that there is a danger that if agencies like the RCMP and CSIS perceive that they are subject to unreasonable levels of openness regarding their national security intelligence and investigations, they may work to subvert such openness.

However, in our submission democratic values should serve to inform and direct any policy changes that flow from the reflections of the Arar Commission. The public should have access to a maximum of information about the steps taken by police and security operatives, and claims for secrecy on the grounds of national security need always be scrupulously scrutinized.

Where a restriction on full public disclosure is deemed, after critical review, to be necessary, it is vital that the operations hidden behind closed doors be reviewed by third party bodies that can act as a surrogate for the public. To the extent possible, the criticisms and concerns of these third party bodies should have the same force and effect as though the public itself were raising its demands with a unified voice.

VI. Re-Committing to Oppose Torture

The BCCLA recommends that the Arar Commission reaffirm the government of Canada’s commitment to oppose torture and propose reforms to ensure that all Canadian officials neither engage in torture nor are complicit in facilitating the torture of any person.

It is the view of the BCCLA that the question of torture may well be one of the key civil liberties and human rights issues of the 21st century. In a post September 11 world, the threat of nations engaging in torture as a means to respond to terrorism is one of the greatest challenges facing the worldwide community of nations. The public demand for an Arar Commission stemmed in large measure from the ethical revulsion widely felt amongst Canadians at the suggestion our law enforcement and investigative bodies might have been complicit in remitting Mr. Arar to a situation in which torture was possible. The Commission will have failed in its mandate if it does not directly confront the question of torture and Canadian complicity in it, including ensuring that Canadian officials do not share information with foreign governments that will facilitate torture of any person. Our nation is already bound by its treaty obligations to oppose torture. Therefore, the recommendations of this Commission must include proposals that re-affirm and ensure our already existing commitments against torture will be met.

VII. Conclusion

New powers, resources and commitment to Canada’s national security agencies demand a corresponding reinvigoration of Canada’s capacity to ensure that there is adequate civilian review, oversight and public accountability of those agencies and their national security activities.

The B.C. Civil Liberties Association’s recommendations to the Arar Commission are made with a view to meeting this need to reinvigorate Canada’s capacity for public accountability in the area of national security. Recognizing and responding to the RCMP’s current resistance to civilian review, the creation of a new National Security Review Committee and an Office of the Civil Liberties Ombudsman as well as reform to the rules regarding national security confidentiality and a re-commitment to oppose torture are all important reforms. If accepted, these reforms would go a long way to ensuring that what happened to Mr. Arar does not happen to anyone ever again.

1) http://www.bccla.org/othercontent/05araraffidavit.htm; http://www.bccla.org/othercontent/05ararargument.htm

2) The Honourable Justice Dennis O’Connor, Commissioner, Arar Commission, Ruling on Standing and Funding (4 May 2004) at 33.

3) This assistance can take various forms including advising complainants regarding the system for police complaints, providing tips and advice about how to make a complaint, providing feedback regarding draft letters of complaint and attending with complaints during internal police investigation interviews regarding the complaint.

4) In B.C., the Police Act governs the police complaint system for municipal police officers.

5) In B.C. and elsewhere in Canada, the RCMP provides policing under contract with the province as the provincial police as well as their duties for national policing.

6) Arar Commission’s Terms of Reference, paragraph (b), http://www.ararcommission.ca/eng/Terms_of_Reference.pdf

7) See Submissions of the Commission for Public Complaints Against the RCMP to the Arar Commission, February 21, 2005, under the heading “Obstacles to Access to Information”: http://www.cpc-cpp.gc.ca/app/DocRepository/1/Arar/arar_e.pdf

8) Ibid.

9)Section 27, Coroner’s Act, R.S.B.C. (1996) c. 72.

10) RCMP Response to the Commission of Inquiry into the Actions of Canadian Officials in Relation to Maher Arar, February 2005, at 34.

11) The BCCLA’s position on security certificates is available on the BCCLA website at: http://www.bccla.org/positions/antiterror/05Security%20Certificates.htm

12) To see a more detailed description of the Muslim Voices project, visit: http://www.bccla.org/muslim.htm

13) See Arar Commission, The RCMP and National Security, A Background Paper to the Commission’s Consultation Paper, October 2004 at 33.

14) [1999] 1 S.C.R. 565 (S.C.C.)

15) This authority exists under the police complaint process in British Columbia. See B.C. Police Act, R.S.B.C., 1996, c. 367, sections 60-61.

16) RCMP Submission, at 3-14.

17) In particular, see the testimony of RCMP Deputy Commissioner Garry Leoppky at pages 740-41 and 775-785: http://www.stenotran.com/commission/maherarar/2004-07-05%20volume%205.pdf

18) A very recent example of this work being undertaken by Citizenship and Immigration Canada is a report entitled “Mail Seizure” by Ray Bowes, an “intelligence analyst” with CIC: Mark Hume, “Fake documents flooding into Canada, report says” The Globe and Mail (16 March 2005) A9.

19) See Submissions of the CPC to the Arar Commission, supra, note 2 under the heading “Definitions – The Forms of Accountability and the Forms of Review”

20) For a fuller description regarding these Ministerial Directives, see Arar Commission, Police Independence from Governmental Executive Direction, A Background Paper to the Commission’s Consultation Paper, October 2004 at pages 6-8.

21) B.C. Police Act, R.S.B.C., 1996, c.367, s. 63 and 63.1.

22) Visit the Auditor General’s website at: http://www.oag-bvg.gc.ca/domino/other.nsf/html/auqdn_agvg_e.html

23) [1996] 3 S.C.R. 480 at para. 23.

24) Dagenais v. Canadian Broadcasting Corp. [1994] 3 S.C.R. 835.

25) [2001] 3 S.C.R. 442.

26) [2004] 2 S.C.R. 332.

I. Introduction

I. The British Columbia Civil Liberties Association (www.bccla.org)

The B.C. Civil Liberties Association (the “BCCLA” or “Association”) is Canada’s oldest active civil liberties organization. The mandate of the BCCLA is to promote, protect and extend civil liberties and human rights in British Columbia and Canada. In furtherance of our mandate, the BCCLA undertakes public education, complainant assistance, law reform work and, occasionally, litigation. More information about the BCCLA, including many past positions with respect to civilian accountability for police and intelligence agencies, can be found at www.bccla.org.

With over forty years of work on protecting civil liberties in Canada, the BCCLA has developed a noted expertise in a variety of areas including national security and intelligence. The details of that experience formed the basis for our application for intervenor status before the Honourable Justice Dennis O’Connor, Commissioner (“Commissioner O’Connor”), Commission of Inquiry into the Actions of Canadian Officials in Relation to Maher Arar (the “Arar Commission”). For greater details regarding our experience and work in the area of national security and security intelligence including matters regarding the Canadian Security Intelligence Service (CSIS) and the Security Intelligence Review Committee (SIRC), please see our application for intervention.[1] In granting the BCCLA intervenor status in the Factual Inquiry and funding for its intervention, Commissioner O’Connor stated: “I was very impressed with their presentation and their history of protecting civil liberties in a national security context.” [2]

In addition to our work regarding national security and security intelligence, the BCCLA has extensive experience in working to promote police accountability. We do so in four ways. First, the BCCLA provides direct assistance to police complainants or prospective complainants.[3] Second, the BCCLA sometimes acts as police complainant in its own right – most often on matters of policy but sometimes with respect to conduct. Third, the BCCLA works via law reform to enhance systems for police accountability at both the provincial [4] and federal [5] levels. In this capacity, the BCCLA has made many submissions to elected representatives at the provincial and federal levels to reform a police complaints process. For example, in 2002, the BCCLA wrote the then Solicitor General Lawrence MacAuley to urge reforms to the Royal Canadian Mounted Police Act to enhance the powers of the Commission for Public Complaints Against the RCMP (the “CPC”) given the new authority and extra resources being given to the RCMP to undertake national security work in the post September 11 era. The Minister declined to adopt our recommendations for reform, which included new audit powers for the CPC. The BCCLA also wrote to Minister MacAuley in 1999 calling for overhaul to the system for complaints against the RCMP. Copies of our letters to Mr. MacAuley are attached as Appendix ‘A’ to this submission. Finally, the BCCLA will sometimes go to court to further police accountability via civilian oversight/review.

It is with this direct experience regarding police accountability in hand that the BCCLA makes this submission with respect to the Policy Review of the Arar Commission. In doing so, we are also mindful of the mandate of the Arar Commission’s Policy Review and the consultation and background documents released by the Commission to focus discussion regarding the Policy Review. The BCCLA found the consultation and background documents to be of great assistance in preparing our submission. The Arar Commission’s Policy Review mandate is stated as follows:

“to make any recommendations that he considers advisable on an independent, arm’s length review mechanism for the activities of the Royal Canadian Mounted Police with respect to national security…” [6]

The BCCLA has also had the benefit of reviewing other key interested parties’ submissions. Where we believe it is relevant to submissions we make, we make particular reference to other parties’ submissions. While other parties will not have had the same benefit of reviewing our submission, our submission will be available through our website (www.bccla.org). We invite other parties to respond to any arguments or submissions that we make. We thank the Arar Commission for this opportunity to comment and we look forward to further dialogue with the Commission and other parties regarding how best to fulfill the Commission’s Policy Review mandate.

The BCCLA submission will be divided into seven sections: Introduction, Summary of Key Recommendations, Current Challenges for Review of the RCMP’s National Security Activities, the BCCLA’s Recommendations for New Review Mechanisms, Enshrining a Principle of Openness in the Review of National Security Activities, Recommitting to Oppose Torture and a Conclusion.


II. Summary of Key Recommendations

The BCCLA recommends that:

(1) the Arar Commission and the government of Canada recognize and rectify the RCMP’s resistance to police accountability via a review mechanism,

(2) the government of Canada create a National Security Review Committee that has jurisdiction and adequate authority to review all federal and provincial agencies engaged in national security work,

(3) the government of Canada create an Office of the Civil Liberties Ombudsman to promote civil liberties, the rule of law and Charter values by reviewing the work of the National Security Review Committee, reviewing complaints and providing advice regarding law reform,

(4) the principle of openness be enshrined in the legal regime for a review mechanism of national security work, and

(5) the Arar Commission reaffirm the government of Canada’s commitment to oppose torture and propose reforms to ensure that all Canadian officials neither engage in torture nor are complicit in facilitating the torture of any person.


III. Current Challenges

The BCCLA recommends that the Arar Commission and the government of Canada recognize and rectify the RCMP’s resistance to police accountability via a review mechanism.

The BCCLA submits that the first challenge faced by the Arar Commission with respect to its Policy Review is to identify the challenges and barriers that exist to establishing such a successful review mechanism for the RCMP’s national security activities. The BCCLA submits that there are significant challenges to recognize and meet to ensure that any new mechanism for review of the RCMP will have a good chance at success.

The BCCLA believes that there are two primary barriers that must be recognized and addressed before determining what would be the best system for review. First, the BCCLA believes that there is significant evidence of RCMP resistance to civilian review. Second, there are significant gaps created by a review system that depends solely upon complaints given current barriers to public access to a complaint system.

1. RCMP Resistance To Police Accountability via Civilian Review

(a) Evidence of Resistance

The BCCLA submits that the RCMP currently demonstrates a resistance, and at times antipathy, to civilian review in the form of the Commission for Public Complaints Against the RCMP. While not absolute – the RCMP appears willing to accept a considerable number of recommendations by the CPC – the level of resistance is significant and unpredictable. The BCCLA believes that this resistance significantly undermines effective civilian review at the present time. This resistance/antipathy presents the singular most important challenge to ensuring that the RCMP remains under the direction of and accountable to civilian authorities. It is a resistance that must be overcome if there is going to be effective RCMP accountability in all the RCMP’s policing activities including national security. Whatever the reforms ultimately recommended by the Arar Commission and adopted by the government, these reforms will miss their mark if this resistance is not recognized. Legal and extra-legal measures must be taken to overcome this resistance.

Before discussing the possible causes and nature of this resistance, it is important to establish the basis for the claim of RCMP resistance to civilian review. The BCCLA has both its own experience with the RCMP in the complaint process and the submissions of the CPC to relate as evidence of the challenge of RCMP resistance to civilian oversight.

In 2003, the BCCLA, in partnership with the Canadian Civil Liberties Association, sought to intervene in a matter before the Federal Court of Canada (Trial Division) in which the CPC petitioned for disclosure of all relevant information regarding a complaint pursuant to paragraph 45.41(2)(b) of the Act. The BCCLA and the CCLA were unsuccessful in their intervention application. The CPC was unsuccessful at trial and is now appealing to the Federal Court of Appeal. The specifics of this case are also referred to in the submission of the CPC. [7] We will not repeat them in detail here.

However, it is important to emphasize how this case is illustrative of the difficulties the CPC has in pursuing its statutory mandate of effective civilian review of the RCMP. First, without complete access to all information, especially highly relevant information, the CPC will be obstructed from achieving its statutory mandate to achieve civilian review. Second, the trial court noted that the RCMP’s objection was not that disclosure to the CPC would compromise the confidentiality of the informant information or make law enforcement more difficult. Rather, the court understood that the RCMP’s position was based on pure legal technicalities: the law provided for the RCMP alone to determine when information would be disclosed to the CPC. Third and quite inexcusably in our view, the RCMP challenged the CPC’s authority to mount a legal challenge to the RCMP’s refusal to provide all information relevant to the complaint.

Given that the information sought was confidential informant information, the BCCLA submits that there is a formidable challenge to ensure that the RCMP discloses highly confidential national security information in a future review mechanism for national security activities.

The submission of the CPC provides many other examples of the resistance of the RCMP to civilian review in the context of disclosure of relevant information to the CPC.[8] Given the mandate of the CPC, its relationship with the RCMP and its direct experience in working to secure RCMP accountability through its civilian oversight role, the Arar Commission must give particular weight to the submission of the CPC on this point.

The BCCLA would also like to relate a recent example of our experience with RCMP resistance to civilian review in recent complaint that we filed with the CPC. In December 2004, a person was shot and killed by an RCMP officer near Vanderhoof , British Columbia. The BCCLA received many media calls seeking comment. In order to ensure adequate civilian review of this critical incident, the BCCLA decided that it would be appropriate to make a complaint to the CPC that the RCMP officer(s) involved acted inappropriately.

In response to our complaint, by way of a letter dated February 21, 2005 from P. Darbyshire, Inspector and Officer in Charge of the Internal Affairs Unit, ‘E’ Division of the RCMP, the RCMP summarily dismissed the BCCLA’s complaint. The RCMP justified its decision by referring to paragraph 45.36(5)(c) of the Royal Canadian Mounted Police Act (the “Act”), and by arguing that (a) a criminal investigation was ongoing, (b) a Commissioner Officer was conducting an “independent” review of the incident and (c) a Coroner’s Inquest had been scheduled. This letter is attached as Appendix ‘B’.

The BCCLA has appealed to the CPC under the provisions of the Act on the basis that, while it may be appropriate to hold our complaint in abeyance while the internal review of the incident is complete, it is wrong and disrespectful of the complaint process and civilian review to summarily dismiss our complaint. The BCCLA takes the view that a criminal investigation will assess the RCMP officer’s conduct against a different legal standard (proof beyond a reasonable doubt) than an allegation of misconduct (civil standard of proof – balance of probabilities). Neither the BCCLA, nor the public, will be provided with a copy of the criminal investigation report. Furthermore, a jury in a Coroner’s Inquest is specifically excluded from making any findings regarding legal responsibility for a death or expressing any conclusion of law regarding responsibility for a death. [9] In other words, a Coroner’s Inquest will specifically avoid assessing RCMP responsibility of the death of the person. In our view, it would have been more appropriate for the RCMP to refer our complaint to an internal investigator for review and processing. A copy of the BCCLA’s letter to the CPC is attached as Appendix ‘C’.

The BCCLA believes that the RCMP’s summary dismissal of our complaint is inappropriate. But more relevant to this submission, the BCCLA submits that it is a specific example of what we consider to be more broad based problem of the RCMP’s attitude toward civilian review. If ever there should be civilian review of RCMP conduct it is in the case of a death or serious injury of a person while in custody of or being pursued by the police. The BCCLA is on record with the CPC as encouraging them to conduct a review of all such cases, whether or not a complaint is made from the public. They currently have no such policy.

Finally, we believe that it is instructive to contrast the substance and tone of the submissions of the RCMP with that of CSIS. The RCMP submissions emphasizes that there is much civilian review and accountability of the RCMP already and that caution should be exercised before adding more:

“The demands on RCMP personnel to meet the requests of additional review processes may adversely impact the benefits from having those investigators working to prevent terrorism, potentially causing investigational effectiveness to crumble under the weight of review.” [10] [Emphasis added]

Far from embracing the idea that more robust civilian review would actually be in the public interest and likely make the RCMP a better organization, there is a certain air of resignation in the RCMP’s submission that there will likely be some changes but that their goal is to limit civilian review as much as possible.

In stark contrast, the CSIS submission reads as if it was penned by SIRC. The BCCLA believes that it reflects the maturation of an over twenty year relationship in which CSIS management understand that a constitutional democracy like Canada’s, where the rule of law governs, requires intense accountability of agencies of the state that have the most significant intrusive powers into Canadians’ lives. That said, we expect that CSIS and SIRC still have their difference and that SIRC remains vigilant in ensuring CSIS respects the rule of law.

In closing on this issue, the BCCLA submits that the evidence clearly indicates that resistance to civilian review is deeply embedded within the culture of the RCMP.

(b) What To Do About the RCMP’s Resistance to Civilian Review?

Why is the RCMP resistant to civilian review and what can be done about it? The BCCLA is not in the best position to ascertain answers to these critical questions. The Arar Commission is in a much better position to undertake this assessment. The Commission must find answers to these questions if a new system for civilian review and oversight is going to be effective. It is the submission of the BCCLA that if there is continued resistance to mechanisms of control and accountability by civilian authorities to the work of the RCMP, then any new system of civilian review and oversight will ultimately be unsuccessful regardless of its legal structure.

For now, the BCCLA will speculate on what some of the answers to these questions might be.

There are likely a number of plausible explanations for the RCMP’s resistant to civilian review. First, this state of affairs might be the result of poor working relationships between individual personalities at any level within the RCMP and CPC. Antagonism in these relationships will lead to less cooperation between the agencies. The BCCLA is not in a position to comment with any certainty about the nature of these relationships. With respect to line staff, there are simply too many relationships between RCMP and CPC staff to judge. With respect to the relationship between RCMP Commissioner Zaccardelli and CPC Chair Shirley Heafey, we again are not in a position to judge. We have reviewed the submissions of the CPC which includes correspondence between the two leaders. We think it is fair to characterize this correspondence as strained. Our reading of this correspondence suggests frustration, expressed professionally and appropriately, by Ms. Heafey in regard to Commissioner Zaccardelli’s resistance to civilian review. While one can not expect that the leaders of these two agencies will always agree, we would expect their interactions to remain professional and reasoned.

Our first point leads to our second. The RCMP’s resistance, or acceptance, of civilian review and oversight, will very much be guided by its leadership. The RCMP Commissioner and other leaders within the organization must demonstrate openness and acceptance of civilian review and oversight and be forceful in requiring RCMP officers and staff down the line to also accept it. Cultural resistance to oversight and review will be set to a significant degree by the messages members of the organization receive from its leaders. We note with particular concern the Interim and Final Reports from the Chair of the CPC as set out in Appendix B of the CPC’s submission to the Arar Commission as providing evidence of concern regarding the RCMP’s leadership’s stance towards civilian review.

Aside from their own attitudes, the RCMP Commissioner and other leaders in the organization must ensure that those in charge of internal affairs at the RCMP are willing to work with a civilian review agency. Thus, key positions in internal investigations must be staffed with officers who are supportive of or at least accepting of, rather than resistant to, civilian review.

We note that even with the right leadership, it is difficult to turn around a large ship quickly if there is wide scale cultural resistance to civilian review within the RCMP. The RCMP has thousands of members spread throughout Canada. To the extent that resistance to civilian review and oversight is pervasive throughout all levels of the RCMP – and we believe that it is – it will take time and considerable effort to inculcate an ethic and cultural attitude with the RCMP that not only accepts but embraces the concept of civilian review. The RCMP and all its members from top down must sincerely believe that civilian review and oversight will make it a better police agency rather than being a process to resist.

Third, resistance to review and oversight might in part be caused by inadequate legal authority vested in the review agency as articulated in legislation and policy. With respect to the CPC’s current difficulties in accessing relevant information to review complaints, that appears to be the case. Unless and until the matter is satisfactorily settled in court or the Royal Canadian Mounted Police Act is properly amended, the CPC will not be able to achieve its mandate whether in the context of the RCMP’s national security activities or any other RCMP policing matter.

The BCCLA notes that the RCMP Act was passed in 1988 and has yet to undergo a thorough legislative review. Irrespective of the Arar Commission’s mandate with respect to national security work of the RCMP, the Act is now outdated and inadequate. It needs to be overhauled to ensure there is effective civilian review in all types of work undertaken by the RCMP.

2. The Inadequacy of a Complaint Based Model

The BCCLA submits that an effective and comprehensive system for police oversight and accountability will require a variety of both pro-active and reactive mechanisms for detecting and correcting problems with police conduct and policy. A system of review that responds simply to complaints generated from the public, while important, will only provide part of the solution to effective civilian oversight and review.

In its work with police complainants, the BCCLA has identified a variety of barriers to access for prospective complainants. These barriers include:

(i) Linguistic, Educational and Literacy Obstacles: Prospective complainants may not have adequate educational backgrounds to navigate or understand the complexities of complaint system. These educational challenges may include problems of inadequate literacy or linguistic capacity in English.

(ii) Cultural Experience: Prospective complainants may come from ethnic and cultural backgrounds that harbour significant distrust of police. Most current models for police complaint procedures require police to investigate complaints in the first stage (as with the RCMP) which creates a significant disincentive to proceed with a complaint. These prospective complainants often fear police reprisals for making complaints.

(iii) Legal Status: Some prospective complainants are refugee claimants, landed immigrants or may have no legal status at all in Canada and are thus reluctant to jeopardize their current and future legal status by making a complaint. The problems with the security certificate process under the Immigration and Refugee Protection Act provide even greater incentive for non-citizens to avoid all contact with the police.

(iv) Inadequate Advocacy or Assistance Resources: There are relatively few organizations in Canada that provide expert assistance or advocacy for police complainants. The BCCLA is unaware of any legal aid programs that provide assistance or representation to police complainants. The BCCLA is one of a handful of organizations that provide direct assistance to complainants. With a lack of assistance or advocacy, prospective complainants simply do not register complaints and some complainants simply abandon their complaint when faced with police intransigence or perceived unfairness in the investigation of their complaint.

In the context of the Arar Commission’s Policy Review and the work of the RCMP in the context of national security, a special mention must be made of the cultural sensitivities of Canadians, landed immigrants or others of Muslim, Arab or other religious/ethnic minority backgrounds. Since September 11, 2001, members of these communities have faced heightened scrutiny by members of the state security apparatus (CSIS, RCMP) and the public in general. We expect the Arar Commission to hear from others more expert than the BCCLA in this regard.

However, the BCCLA would like to relate its experience in seeking to work with the Muslim community in recent years. Shortly after September 11, 2001, the BCCLA was invited to speak to members of the Muslim community at the Lower Mainland’s largest mosque. In 2004, the Association launched its Muslim Voices project. [12] This project sought to work with leaders and organizations in the Muslim community to assist members of that community who had concerns about inappropriate treatment by state agencies or the public generally. As part of this project, BCCLA representatives visited several mosques throughout the Lower Mainland to distribute literature, introduce the BCCLA to the community and offer our services to assist anyone who had concerns. During these visits, we received considerable information about perceived mistreatment but few individuals sought specific assistance to file a formal complaint. This project has been an important learning experience for the Association in understanding the diversity within the community. We have also become more attuned to the considerable barriers that exist for individuals in the community to come forward to seek assistance even when they have legitimate grounds for concern. In a context in which there is much fear about guilt by mere association, however tenuous, and sleeper cells, it is likely that members of the community are simply not identifying themselves as possible victims of inappropriate or questionable behaviour because they do not wish to be identified within their own community as someone who has been targeted by the RCMP or CSIS or another national security agency as a person of interest. Through a poster campaign and other efforts, the BCCLA will continue to work with the Muslim community to ensure that its members are free of stereotyping or generalized suspicion of terrorist activity merely because they are Muslim.

In addition to complainant sensitivities, the very nature of the RCMP’s national security work will inevitably result in fewer public complaints because of its secretive nature. As noted in the Arar Commission’s own documents prepared as part of this Policy Review, “a significant portion of this work [national security activities of the RCMP] is unlikely to be seen by anyone outside the policing or national security intelligence community.” [13] National security work and intelligence gathering activities mostly do not end up in court, much information is not disclosed publicly and even if there is some sort of state action (e.g. a security certificate issued under the Immigration and Refugee Protection Act), members of the public subject to national security investigations or intelligence investigations will likely never know of the particular conduct of the RCMP or CSIS due to national security confidentiality.

In sum, for all these reasons, complaints will never be an adequate system for civilian oversight and review with respect to the RCMP.

3. Police Independence, Police Accountability

The BCCLA wishes to comment here briefly on the notion of “police independence”. The BCCLA submits that there is an important distinction between improper interference by elected representatives with the police function to uphold the rule of law and appropriate, indeed necessary, direction by elected representatives to the police to discontinue policies and practices that undermine the rule of law or are illegal.

We believe that there is broad consensus at every level that there be must safeguards to prevent political representatives from interfering with specific criminal investigations when motivated by personal or partisan political interests or that would have the effect of being improper for personal or partisan political interests. We believe that it is this principle that animates the conception of “police independence” which has been endorsed in R. v. Campbell and Shirose. [14]

This conception of police independence however does not preclude political representatives and indeed members of the Executive branch of government, especially the Minister responsible in the case of the RCMP, from providing appropriate direction to the police. Circumstances may well arise in which the public has a reasonable expectation that elected representatives would direct the police to discontinue practices that are illegal.

For example, some years ago, the Vancouver Police Department (VPD) instituted a program of intrusive searches for alcohol at SkyTrain stations in Vancouver during evenings of the city’s fireworks festival. The police were particularly concerned that with large crowds, alcohol could be a significant contributing factor in causing a riot. This policy was instituted not long after the Stanley Cup riots of 1994. Acting on complaints from the public and the BCCLA, the Vancouver Police Board, the civilian authority most akin to the Minister of Public Safety and Emergency Preparedness in respect of the RCMP, reviewed the VPD policy and came to the conclusion that the VPD’s policy promoted unlawful and inappropriate conduct by its members. It amended the policy and abolished the practice of alcohol searches at SkyTrain stations.

This kind of direction in policy and system wide operational matters, as opposed to direction in any specific criminal investigation, is rare yet entirely appropriate. Indeed, the BCCLA believes that there should be more oversight with respect to political masters giving appropriate direction to the police. Rather than being discouraged or prohibited in law, law and policy should promote this kind of accountability. We encourage the Arar Commission to understand and highlight this distinction in its recommendations. Given the nature of national security work, which often operates behind a veil of secrecy away from the glare of public scrutiny or the courts, this type of accountability is all the more critical.

IV. BCCLA Proposals For Reform

1. National Security Review Committee

The BCCLA recommends that the Arar Commission recommend that the government of Canada create a new National Security Review Committee (NSRC)) that has jurisdiction and adequate authority to review all federal and provincial agencies engaged in national security work.

(a) National Security Review Committee Jurisdiction and Authority

The NSRC would have the following characteristics and powers:

  • Officer of Parliament: As an Officer of Parliament, the Chair of the National Security Review Committee would report directly to Parliament rather than just to a Minister responsible. This would ensure greater independence and is consistent with other review agencies including the Privacy Commissioner of Canada, the Information Commissioner of Canada and the Auditor General of Canada. This would also be consistent with the fact that this Committee would review the national security work of a variety of federal agencies rather than just one agency or Ministry. The CPC and SIRC currently only report to the Minister of Public Safety and Emergency Preparedness Canada.
  • National Security Jurisdiction: The National Security Review Committee would have the mandate to review not only the national security work of the RCMP and CSIS, but also the variety of other federal agencies that are engaged in national security work including but not limited to: the Canadian Border Services Agency, Citizenship and Immigration Canada, the Department of Transport, Department of Foreign Affairs, and the Financial Transactions and Reports Analysis Centre of Canada. 
  • Members and Staff: The most important appointment will be the Chair of the National Security Review Committee. Like SIRC, a committee would normally include other appointments though the BCCLA has no strong position on whether a number of members need be appointed. However many appointments are made, they should be non-partisan, made by the Prime Minister’s Office and vetted by an all-party Parliamentary National Security Committee. The appointment process should be transparent and qualifications for membership should be published. As staff of the National Security Review Committee will do the bulk of the detailed work of the Committee, they will need to be experts in their field, highly trained and motivated. The NSCR should publish the names and biographies of its staff in annual reports and on the website.
  • Access to Information and Subpoena Powers: Much like SIRC, the National Security Review Committee and its staff would have legal authority to have access to and receive copies of all information in the custody or control of the agency subject to review. In addition to complete document access, the Committee would have the authority to subpoena any individual to compel testimony or produce documents. In order to ensure the security and integrity of information subject to national security privilege, the Committee and its staff would have top level security clearance and other safeguards.
  • Authority to Receive, Initiate, Investigate and Determine Complaints: The National Security Review Committee would be responsible for all aspects of complaints including receiving, initiating, investigating and determining the merits of a complaint. With respect to investigations, the Committee would have the authority to delegate an investigation to the agency subject to review. Upon review of the findings and conclusions of the internal investigation, the Committee could accept the conclusions, undertake its own investigation or hold a hearing with respect to allegations of misconduct. After a hearing, an arbitrator would make findings with respect to misconduct and decide upon an appropriate level of discipline/corrective action. [15]
  • Public Education: NSRC should conduct an ongoing and robust program of outreach informing the public about its mandate and authority including the complaint process.
  • Mandate to Audit: We are in agreement with the Canadian Civil Liberties Association that, the National Security Review Committee would not only have the authority to undertake proactive audits of the agencies subject to its jurisdiction, it would have a legislative obligation to undertake such audits. Given the nature of national security work, the BCCLA expects that much of the work of subject agencies will go undetected by citizens and individuals. Unlike, RCMPs general policing work, there will be less direct interaction with people. People subject to questionable practices may not be in a position to actually make a complaint. Therefore, NSRC must have audit authority. In order to achieve the audit mandate, the Committee would have to receive adequate resources to undertake this work. It is the experience of the BCCLA that when review agencies are not adequately resourced, responsibilities and authority that require pro-active measures often get left behind while the organization reacts and responds to those responsibilities it must meet. A legislative obligation to undertake and report on audits as well as adequate resources to achieve this mandate would go a long way to rectifying this problem.

The BCCLA submits that a new NSRC would replace the current SIRC. The BCCLA takes no position on how best to create NSRC but we would expect that current SIRC Committee members and staff would be one prime source, among others, for qualified candidates for NSRC personnel.

(b) Rationale for Single Review Agency for All National Security Work

In making our recommendation for a National Security Review Committee, the BCCLA considered that two factors were of particular importance: (1) the fact that national security intelligence and investigation work is being done by a variety of federal agencies, in cooperation with some provincial agencies, spread over various Ministries and (2) the significant degree of integration of this work between agencies and personnel. Given these factors, the BCCLA believes that a system for review of national security work will require an agency that has jurisdiction to overcome institutional boundaries.

Some suggest that the McDonald Commission envisioned a neat distinction between CSIS undertaking intelligence work in the national security field while leaving the RCMP to be responsible solely for undertaking criminal law enforcement investigations regarding national security offences. In this scheme, the RCMP would not conduct security intelligence work itself. Even if that reading of the McDonald Commission’s recommendations is correct (some suggest it is not), the BCCLA always expected CSIS and the RCMP to be working so closely that any fine distinction between the two agencies’ jurisdictions would ultimately become blurred. After all, what kind of case would not be a matter of crime prevention/detection concern legitimately within the purview of the RCMP if the matter raises a threat to national security? We doubt the RCMP was ever ready to simply leave all the intelligence detecting work they did prior to the McDonald Commission to CSIS and wait for their phone call. The rise of “intelligence led” policing by the RCMP in national security work has clearly confirmed that the RCMP have reoccupied this field, if they actually ever left it at all. This current state of affairs is further confirmed by the submission of other parties and intervenors, particularly the submission of the RCMP itself. [16]

Aside from the fact that the RCMP is clearly undertaking intelligence related work in the area of national security, it is very difficult to discern the boundaries between where the work of CSIS ends and the RCMP begins. Some of the very limited public testimony regarding the distinction between the work of the RCMP and CSIS is revealing in this regard. [17]

But in addition to the RCMP and CSIS, a raft of other federal agencies also have their fingers in the national security intelligence/investigation pie. Agencies like the new Canadian Border Services Agency, Citizenship and Immigration Canada, [18] Transport Canada, the Department of Foreign Affairs, the Financial Transactions and Reports Analysis Centre of Canada, not to mention provincial police and municipal police forces involved with RCMP led Integrated National Security Enforcement Teams (INSETs), are all now engaged in national security intelligence and investigation. While these agencies will have MOUs and policy with the RCMP and CSIS in terms of cooperation and sharing information (or should have), the boundaries where one agency’s work begins and ends vis-à-vis another’s is increasingly difficult to determine. In such circumstances, it is imperative that a review agency be able to straddle those boundaries wherever they may exist.

CSIS and the RCMP share personnel. Where an RCMP officer is seconded to CSIS and then is the subject matter of a complaint or investigation, who should review this officer’s conduct? While technically an RCMP officer, CSIS will understandably be reluctant to open its files and cooperate with an investigation by the CPC. But is it appropriate for the SIRC to be making determinations about whether an RCMP officer seconded to CSIS has committed misconduct and what the appropriate corrective action should entail? A single review agency overcomes this serious problem.

CSIS and the RCMP share information as do other agencies involved in national security work. A civilian review agency responsible for ensuring accountability in the area of national security must be able to follow the thread of evidence either forward to its conclusion or back to its inception regardless of whether it originated with the RCMP, CSIS or some other agency. This requires that the civilian agency have access to information for all agencies relevant to a particular matter or file. Just consider the problem if the Arar Commission was limited in its jurisdiction to consider information held only by the RCMP. Indeed, the Arar case simply illustrates in stark relief the fact that any national security matter will cut across agency lines. A review agency will need to go where the evidence takes it rather than bumping into jurisdictional boundaries that frustrate its enquiries. National security review requires a single agency to cover all federal and provincial agencies engaged in national security work.

There are a variety of other new initiatives post September 11 that indicate that national security work is becoming more and more integrated across institutional lines. For example, the RCMP along with other agencies including provincial and municipal police created Integrated National Security Enforcement Teams (INSETs). INSETS utilize personnel from across law enforcement and other agencies (including CSIS) to provide front line national security work (intelligence, prevention and investigation). Another example is the work of Integrated Border Enforcement Teams (IBETs) dealing with international borders.

In addition to issues regarding the number of agencies involved in national security work and the degree of integration across agency boundaries of that work, there are other reasons to rationalize a system of civilian review in one office. First, the standards of review and their equal application to all personnel engaged in national security activity should be harmonized across agencies. Second, the RCMP would not be singled out for special attention in this reform measure, nor should it be. Third, a single review agency would avoid jurisdictional rivalries or conflict between different review agencies such as the CPC and SIRC. Finally, and critically, a single review agency will be in a much better position to survey the entire landscape regarding national security work with a review to ensuring adequate accountability. Whereas the perspective of the CPC or SIRC will be understandably focused solely on the agency they review, they will miss the “big picture” that a single review agency would be able to provide to identify issues of concern that cut across jurisdictional boundaries.

The BCCLA notes that even with NSRC, the CPC would continue to provide civilian review with respect to all other RCMP policing. We acknowledge that creating two civilian review systems for the RCMP could pose a challenge. We would expect that the RCMP would rather be subject to only one system of review. However, taking into consideration all the factors listed above, from the perspective of civilian review of national security work, it would be more prudent to proceed with reform in line with our recommendations. We also note that under a system as we propose, the National Security Review Committee would be able to call upon the specific expertise and knowledge of the CPC to assist in the Committee’s work regarding the RCMP.

(c) Civilian Review to Make Determinations Regarding Misconduct

The BCCLA submits that the current system with respect to civilian review of the RCMP is deficient because the CPC has only limited power to make recommendations to the Commissioner of the RCMP and the Minister.

In the view of the CPC, this limited authority and the fact that the Commissioner of the RCMP rejected 25% of the critical findings of the CPC and 21% of its recommendations in 2003/04 is actually a sign of “healthy tension” and “true dialogue” between the RCMP and the CPC. [19]

The BCCLA respectfully disagrees. In our view, the best system for civilian review of past conduct requires the power for a civilian agency or an independent process with civilian adjudicators to make determinations with respect to the propriety of conduct. A system that permits the RCMP, or any service agency, to make final determinations with respect to the appropriateness of the conduct of its officers in particular circumstances is in fact the opposite of true civilian accountability of the police.

The BCCLA draws an important distinction here between determinations with respect to the propriety of specific conduct on the one hand and policy on the other. The BCCLA submits that the most appropriate body in which decisions with respect to policy must reside is with the Minister of Public Safety and Emergency Preparedness (formerly the Solicitor General) with respect to the RCMP or the appropriate Departmental minister. We base our position on the theory of responsible government in which Ministers of government have responsibility for the agencies under their direction and a responsibility to Parliament as a matter of accountability for those agencies. This latter notion is reflected in section 5(1) of the Royal Canadian Mounted Police Act and recent Ministerial Directions regarding the RCMP. [20] Thus, the Minister is responsible for setting broad policy under which the RCMP operates.

This distinction is also notable in legislation under the Police Act in British Columbia. Under this legislation, a complaint is classified as either a “public trust” complaint or “service and policy” complaint. The former deals with allegations of misconduct by specific police officers whereas the latter deals with complaints regarding service or policy. Whereas public trust complaints can lead to a hearing by an independent arbitrator for adjudication, policy complaints are ultimately left to the local government police board, a civilian oversight authority, to determine. [21]

That said, the BCCLA submits that the National Security Review Committee should have the authority to review and make public recommendations regarding policies of the RCMP and other agencies with respect to national security. The RCMP should be able to accept or reject such recommendations and indeed there may be a healthy tension here as suggested by the CPC as long as the final determination with respect to policy is made by the Minister as part of her responsibilities to direct the RCMP. In order to ensure that the Minister is held to account for policy decisions, the review agency must make its recommendations public via the Parliament of Canada. In turn, the Minister must have a legal obligation to respond publicly in Parliament to policy recommendations by NSRC.

The BCCLA notes that current provisions of the Royal Canadian Mounted Police Act do not provide for policy complaints unlike the B.C. Police Act. This absence may sometimes subject RCMP officers to unfairness in that they may be the respondent in a conduct complaint when in fact they are just following RCMP policy. This problem should be rectified both with respect to national security matters but also with respect to all policing undertaken by the RCMP.

2. Office of the Civil Liberties Ombudsman

The BCCLA recommends that the Arar Commission recommend that the federal government establish the Office of the Civil Liberties Ombudsperson (CLO).

(a) Jurisdiction and Authority for a Civil Liberties Ombudsman

The mandate and authority of the Civil Liberties Ombudsman (CLO) would include:

  • Mandate of the Civil Liberties Ombudsman: The mandate of the CLO would be to promote and protect civil liberties, the rule of law and Charter values in the context of national security. 

  • Officer of Parliament: Like the National Security Review Committee, the Civil Liberties Ombudsman would report directly to Parliament in an annual report and in hearings with a Parliamentary Committee on National Security. 
  • Advise the National Security Review Committee and Government: As an expert in civil liberties, the CLO would be able to provide advice and guidance to the NSRC in its work to review national security agencies as well as the government.
  • Audit the National Security Review Committee: The CLO would have access to all information and files of the NSRC. It would not have access to information directly from or contact directly with the RCMP, CSIS or other agencies providing national security work. While it may have informal discussions and meetings with these agencies, the CLO is not meant to regulate them directly but rather to be an additional check on the work of the review committee. As such, the CLO could make recommendations to the NSRC regarding the conduct of particular files both in an ongoing way in an advisory capacity or as an ex post facto review of files. 
  • Review Complaints: On the request of government, by a request of a complainant or on its own initiative, the Civil Liberties Ombudsman would have discretion to review the substance of a complaint. To do so properly, it would have access to all relevant information regarding the complaint including the NSRC file and could direct NSRC to obtain further information from the agency subject to the complaint. After reviewing a complaint, the CLO would make recommendations to NSRC and/or government by filing a report with Parliament.
  • Law Reform: The CLO would be responsible for reviewing all proposed national security legislation by the federal government and making recommendations regarding law reform in the field of national security when it determines that it is appropriate to do so.

(b) Rationale for a Civil Liberties Ombudsman

By its very nature, national security intelligence and investigation work is shrouded in secrecy. The front line agencies that undertake this work understandably advocate for the utmost protection for national security and national security confidentiality. That is their mandate; they serve to protect. To properly review and obtain access to all classified documentation and information, review agencies naturally are also obliged to maintain this confidentiality. If one reads an annual report from SIRC, this need to maintain confidentiality of national security information is evident. While one has a general understanding of what issues are audited and reviewed by SIRC in a given year, SIRC’s public reports are short on details. In the world of national security, it is very much a “trust us” scenario both with respect to front line service agencies like the RCMP and CSIS and review agencies like SIRC. This is not so much a criticism as a recognition of the sensitive informational context of this particular field.

But in such a clandestine context, how can the public have confidence that the independent agencies set up to safeguard the rule of law and basic rights are doing their job? As noted, SIRC’s annual reports provide limited detail regarding SIRC’s review and CSIS’s work due to national security confidentiality. Subject to acceptance of our submissions in section V below, this may be a continuing barrier to ensuring transparency and public accountability even with a new National Security Review Committee. The problem with such limited disclosure of information is not only that the public is not fully informed about national security activities, it is not informed about the extent and nature of the review of those activities.

If there was a Parliamentary national security committee, this committee would be responsible for reviewing the reports of review agencies and holding hearings into their work and the work of national security agencies in general. But again, such a committee will hold much of those hearings in camera and operate under strict confidentiality. Furthermore, we would expect such a committee’s mandate to include ensuring Canada’s national security apparatus is functioning effectively. As such, this committee’s task will likely be as much an advocate for more national security as the agencies (RCMP, CSIS) themselves rather than an advocate for appropriate review of national security work.

Given the fundamental civil liberties as stake and the devastating impact errors by national security agencies may have on individuals, the BCCLA submits that a civilian review office or review by a Parliament committee on national security should be augmented with other checks.

Any watchdog that takes its mandate seriously will also be preoccupied with the question of who keeps an eye on them. For example, if one visits the website of the Office of the Auditor General, under the heading “What We Do”, one finds the category: “Who Audits the Auditor General?” The website then describes how the Auditor General is itself subject to accountability for the work it undertakes in furtherance of its mandate including meeting with parliamentary committees responsible for public accounts as well as initiating “quality assurance” reviews. [22]

Aside from needing assurances of a check on the watchdogs, one must ask who is advocating for civil liberties within the national security field. The metaphor of a “balance” between national security and civil liberties is often invoked. But to obtain a correct balance, there must be a counterweight. It is evident in today’s geopolitical context that the weight of national security is massive and that many powerful interests advocate for this side of the equation. In this context, is it reasonable to expect that review agencies like SIRC or the CPC can provide an adequate counterweight? The BCCLA’s experience is that review agencies tend not to operate as an advocate but rather try to strike the right balance.

It is important to pause to note concerns about “captured regulators”. A review agency like SIRC works closely with CSIS in a relatively obscure context which, because of its secretive nature, is not subject to the normal scrutiny with which Parliament, the media and ultimately the public is accustomed to in public affairs. There is always a danger for regulators to tend to see the world more like those they regulate. This danger is more significant in the cloistered environment of national security. The BCCLA is not suggesting at all here that SIRC has failed in its mandate. Indeed, we are not in a position to judge not having access to all relevant information. But that is the point. No one is in a position to judge because of the inaccessibility of access to such information. The BCCLA and other Intervenors before the Arar Commission’s Factual Inquiry have some experience on this point. In such scenarios, it is wise to create as many checks and balances as reasonably feasible.

Given this environment, the BCCLA believes that it is time for the federal government to establish a watchdog whose primary mandate is to promote and protect civil liberties, the rule of law and Charter values, in the context of national security. Therefore, the BCCLA recommends the creation of the Office of the Civil Liberties Ombudsman to review the work of the National Security Review Committee.

We have outlined the jurisdiction and the authority of the Civil Liberties Ombudsman above. In particular we emphasize that it is body with recommendations powers that seeks to be an additional check on the review agency and thus vicariously on the RCMP, CSIS and other agencies engaged in national security activities. We have sought to structure our recommendations so that it is not a significant additional direct burden on these agencies.

But we wish to add one note about resources for the Civil Liberties Ombudsman. While the CLO must have adequate resources to do its job, the BCCLA is not recommending the creation of a new, large bureaucracy. The Office of the CLO should be relatively small and efficient. It will likely not have the resources to take on every possible civil liberties issue in the context of national security and thus will have to focus its resources on the greatest priorities. The BCCLA does not seek to add yet another significant layer of bureaucracy but we believe that creating an office that has a unique role to safeguard civil liberties is an idea whose time has come.

V. Principle of Openness in Review of National Security Activities

The BCCLA recommends that the principle of openness be enshrined in the legal regime for a review mechanism of national security work. This principle would take effect in a presumption that the review of the national security activities of the RCMP, CSIS and other agencies would seek to provide Canadians with detailed information regarding audits and review by the National Security Review Committee unless the publication of such information could jeopardize national security. The government would bear the onus of proving how publication could jeopardize national security.

The work of the BCCLA is rooted in a commitment to the grand and unfinished experiment of democracy. We take this to be the notion that we can live together as fellow citizens under a government that answers to a sovereign people, rather than to a king or council.

The idea of democracy involves much more than the bare right to vote. In a robust democracy, each constituent should have the right to contribute to the governance of the collective to the extent that this right is compatible with the same right of all other constituents.

Information about public affairs is vital to the exercise of our right to contribute to governance. To engage politically, to argue and debate, to think and dispute together, to add our voices to the democratic clamour, we need as much information as can possibly be made available. We need to know what is done by government because it is done in our name and because we bear ultimate responsibility.

The dissemination of information to the public is in some ways already a legislative priority. For example, provincial and federal legislatures have relatively recently passed freedom of information laws, which (with some hotly contested exceptions) allow citizens to request and receive information from government sources. We do not say that all access-to-information statues are ideal, but we are of the view that Freedom of Information rights are an ongoing source of democratic vitality.

In addition to freedom of information laws, the Courts have long been vigilant in upholding the principle of openness, which ensures that courtrooms remain open to press and public. The open courtroom principle, which antedated the Canadian Charter of Rights and Freedoms, was elevated to constitutional status by section 2(b) of the Charter: the right to free expression and freedom of the press. As noted by La Forest, J. in CBC v. New Brunswick:

“The principle of open courts is inextricably tied to the rights guaranteed by s.2(b). Openness permits public access to information about the courts, which in turn permits the public to discuss and put forward opinions and criticisms of court practices and proceedings…. The full and fair discussion of public institutions, which is vital to any democracy, is the raison d’etre of the s.2(b) guarantees.” [23]

The open courtroom principle is not an ironclad rule. Rather, it is a presumption that a court proceeding will be open to the public unless there are compelling reasons why it should not be open to the public.

As set out in the Supreme Court of Canada decisions in Dagenais [24] and R. v. Mentuck [25], a limit on the open courtroom, such as a publication ban, should only be ordered to prevent a serious risk to the administration of justice, when other measures will not prevent that risk, and when the benefits of the ban outweigh the risks. In the recent case Re Vancouver Sun, the Supreme Court of Canada held that the presumption of open courtrooms applies even in the context of an investigative hearing under the anti-terrorism provisions of the Criminal Code. [26]

In our view, there is no principled reason why the open courtroom principle, designed to promote full and fair discussion and criticism, should not be expanded to embrace a more general principle of open governance. The BCCLA believes that the principle of open governance requires that all information about public affairs should be made available to the constituents of this country unless: (1) the release of the information involves a serious risk; (2) measures other than state secrecy will not prevent the risk; and (3) the expected risk of releasing the information exceeds the expected benefit of its release.

In our submission, this principle of open governance should have as much currency in the area of national security as it has in any other area. Matters of national security are issues that are as critical if not more critical to the citizens of a country as other issues. That is not to say that there should be no state secrets — but only to assert that secrecy must be rigorously justified by the keepers of those secrets.

The principle of open governance does not create a binary choice for government. All secrecy, including state secrecy, is on a spectrum. At one pole, a true secret is known only by one individual. At the other pole, public information is available to all members of the public.

Public institutions can be located anywhere along the continuum of accountability. Institutions may be accountable directly to the public, to Parliament or its Committees, to semi-public Inquiries, to semi-secret bodies such as SIRC, or they may, as they are in an unknown number of cases, be entirely secretive and unaccountable to anyone.

The BC Civil Liberties Association urges the Arar Commission, in reaching its conclusions on issues of policy, to ensure that any recommendations for institutions comports to the greatest extent possible with the principle of open governance. Open governance is democratic in the most direct sense, in that the citizens have direct and unfiltered access to the information.

The Association appreciates that in some cases it may be considered necessary to create institutions that operate as a surrogate for the public by screening information in the public interest without providing the public direct access to information. Surrogate institutions are less desirable in that they represent a deviation from democracy — they are consequently more vulnerable to capture by and dependence on other institutions, and are less capable of adopting a multiplicity of perspectives that the public at large. While surrogacy and its accompanying institutionalized secrecy is sometimes necessary, it is certainly less desirable that direct democracy and open governance.

The BCCLA acknowledges that there may be a need for secrecy in certain defined cases or classes of cases. National security often involves clandestine activity, including activities which the public would consider desirable if we knew of them. Many of these activities would not succeed if their workings were exposed to the public.

However, the BCCLA would encourage the Commissioner to undertake a close analysis of the specific areas in which state secrecy may be justified. This is especially true when considering institutional mandates to report, including the critical issues such as the level of reporting detail and the identity of those to whom reports are provided. The BCCLA believes that democratic open governance and direct public accountability should rule unless otherwise proven.

The BCCLA recognizes that it may not be politically plausible to revamp existing systems of secrecy and partial accountability to conform entirely to the values outlined above. We are acutely aware that there is a danger that if agencies like the RCMP and CSIS perceive that they are subject to unreasonable levels of openness regarding their national security intelligence and investigations, they may work to subvert such openness.

However, in our submission democratic values should serve to inform and direct any policy changes that flow from the reflections of the Arar Commission. The public should have access to a maximum of information about the steps taken by police and security operatives, and claims for secrecy on the grounds of national security need always be scrupulously scrutinized.

Where a restriction on full public disclosure is deemed, after critical review, to be necessary, it is vital that the operations hidden behind closed doors be reviewed by third party bodies that can act as a surrogate for the public. To the extent possible, the criticisms and concerns of these third party bodies should have the same force and effect as though the public itself were raising its demands with a unified voice.


VI. Re-Committing to Oppose Torture

The BCCLA recommends that the Arar Commission reaffirm the government of Canada’s commitment to oppose torture and propose reforms to ensure that all Canadian officials neither engage in torture nor are complicit in facilitating the torture of any person.

It is the view of the BCCLA that the question of torture may well be one of the key civil liberties and human rights issues of the 21st century. In a post September 11 world, the threat of nations engaging in torture as a means to respond to terrorism is one of the greatest challenges facing the worldwide community of nations. The public demand for an Arar Commission stemmed in large measure from the ethical revulsion widely felt amongst Canadians at the suggestion our law enforcement and investigative bodies might have been complicit in remitting Mr. Arar to a situation in which torture was possible. The Commission will have failed in its mandate if it does not directly confront the question of torture and Canadian complicity in it, including ensuring that Canadian officials do not share information with foreign governments that will facilitate torture of any person. Our nation is already bound by its treaty obligations to oppose torture. Therefore, the recommendations of this Commission must include proposals that re-affirm and ensure our already existing commitments against torture will be met.


VII. Conclusion

New powers, resources and commitment to Canada’s national security agencies demand a corresponding reinvigoration of Canada’s capacity to ensure that there is adequate civilian review, oversight and public accountability of those agencies and their national security activities.

The B.C. Civil Liberties Association’s recommendations to the Arar Commission are made with a view to meeting this need to reinvigorate Canada’s capacity for public accountability in the area of national security. Recognizing and responding to the RCMP’s current resistance to civilian review, the creation of a new National Security Review Committee and an Office of the Civil Liberties Ombudsman as well as reform to the rules regarding national security confidentiality and a re-commitment to oppose torture are all important reforms. If accepted, these reforms would go a long way to ensuring that what happened to Mr. Arar does not happen to anyone ever again.

1) http://www.bccla.org/othercontent/05araraffidavit.htm; http://www.bccla.org/othercontent/05ararargument.htm
2) The Honourable Justice Dennis O’Connor, Commissioner, Arar Commission, Ruling on Standing and Funding (4 May 2004) at 33.
3) This assistance can take various forms including advising complainants regarding the system for police complaints, providing tips and advice about how to make a complaint, providing feedback regarding draft letters of complaint and attending with complaints during internal police investigation interviews regarding the complaint.
4) In B.C., the Police Act governs the police complaint system for municipal police officers.
5) In B.C. and elsewhere in Canada, the RCMP provides policing under contract with the province as the provincial police as well as their duties for national policing.
6) Arar Commission’s Terms of Reference, paragraph (b), http://www.ararcommission.ca/eng/Terms_of_Reference.pdf
7) See Submissions of the Commission for Public Complaints Against the RCMP to the Arar Commission, February 21, 2005, under the heading “Obstacles to Access to Information”: http://www.cpc-cpp.gc.ca/app/DocRepository/1/Arar/arar_e.pdf
8) Ibid.
9)Section 27, Coroner’s Act, R.S.B.C. (1996) c. 72.
10) RCMP Response to the Commission of Inquiry into the Actions of Canadian Officials in Relation to Maher Arar, February 2005, at 34.
11) The BCCLA’s position on security certificates is available on the BCCLA website at: http://www.bccla.org/positions/antiterror/05Security%20Certificates.htm
12) To see a more detailed description of the Muslim Voices project, visit: http://www.bccla.org/muslim.htm
13) See Arar Commission, The RCMP and National Security, A Background Paper to the Commission’s Consultation Paper, October 2004 at 33.
14) [1999] 1 S.C.R. 565 (S.C.C.)
15) This authority exists under the police complaint process in British Columbia. See B.C. Police Act, R.S.B.C., 1996, c. 367, sections 60-61.
16) RCMP Submission, at 3-14.
17) In particular, see the testimony of RCMP Deputy Commissioner Garry Leoppky at pages 740-41 and 775-785: http://www.stenotran.com/commission/maherarar/2004-07-05%20volume%205.pdf
18) A very recent example of this work being undertaken by Citizenship and Immigration Canada is a report entitled “Mail Seizure” by Ray Bowes, an “intelligence analyst” with CIC: Mark Hume, “Fake documents flooding into Canada, report says” The Globe and Mail (16 March 2005) A9.
19) See Submissions of the CPC to the Arar Commission, supra, note 2 under the heading “Definitions – The Forms of Accountability and the Forms of Review”
20) For a fuller description regarding these Ministerial Directives, see Arar Commission, Police Independence from Governmental Executive Direction, A Background Paper to the Commission’s Consultation Paper, October 2004 at pages 6-8.
21) B.C. Police Act, R.S.B.C., 1996, c.367, s. 63 and 63.1.
22) Visit the Auditor General’s website at: http://www.oag-bvg.gc.ca/domino/other.nsf/html/auqdn_agvg_e.html
23)
[1996] 3 S.C.R. 480 at para. 23.
24) Dagenais v. Canadian Broadcasting Corp. [1994] 3 S.C.R. 835.
25) [2001] 3 S.C.R. 442.
26) [2004] 2 S.C.R. 332.