- This submission by the British Columbia Civil Liberties Association represents an attempt to deal with certain of the questions raised in the Commission’s comprehensive issues paper. The Commission’s paper is addressed to that art of its mandate which requires it to advise the federal Government on the policies and laws which should govern RCMP activities in protection of the “security” of Canada. However, this submission is not confined to a discussion of issues related to the RCMP security service, because we find it difficult to divorce problems raised by activities of this service from problems concerning the practices and powers of the Criminal Investigation Branch of the RCMP. The submission follows the organization of the Commission’s issues paper, as far as possible. It concludes with a summary of our major recommendations.
- Purpose and mandate of the security service
- National security
- If we must speak of “national security” let us not be misled by the choice of words. Protecting “national security” must be understood to consist essentially in protecting the substance of democracy and of individual rights within Canada and in protecting Canada’s right of self-determination and its territorial rights. A police force which does not operate within the rule of law, and a government which legalizes police invasions of individual rights, are therefore potent threats to “national security”.
- If there is to be a security service with the mandate of protecting “national security” it must be understood clearly what “national security” consists in. Unfortunately, there is a way of using the phrase where it becomes merely a slogan used to justify measures to counter any radical social or political change. “national security” becomes the equivalent of “national survival and survival of existing national institutions.” But in a democratic society the mandate of a security service cannot be to ensure the survival of the nation and of national institutions. Legitimate political movements may advocate radical institutional change, division of the country into separate units, or a political union between the country and its neighbour. Given evidence that the security service of the RCMP has interfered with, or placed under surveillance, such legitimate movements as the Parti Quebecois and the Waffle section of the NDP, we cannot stress too much that such police activities are incompatible with the legitimate role of a security service in a democracy.
- We would prefer to have it said that the security service is not to protect “national security” at all. A legitimate goal of police work would be to protect what we could call “democratic values.” There are two sides to this. On the one hand, there is the protection of Canada’s territorial rights and its right of self-determination. Given this goal, the police would be charged with gathering intelligence about threats to these rights and with preventing espionage. on the other hand, there is the protection of the substance of our traditions of democracy and respect for human rights. We say the “substance” of these traditions so that the advocacy of radical constitutional change will not necessarily be seen to involve the advocacy of subversion of these traditions. It is also worth noting here that these democratic values are susceptible to erosion today by actions permissible under Canadian law quite simply because there is no entrenched Bill of Rights to give these democratic values priority when they conflict with an otherwise constitutional enactment.
- However, the police may not be charged with protecting democratic values tout court, but only with protecting those values from illegitimate overthrow or subversion. Efforts of foreign powers to overthrow these values by clandestine means would presumably be illegitimate, as would efforts by domestic groups to accomplish this by force, violence, criminal actions or in a clandestine way. But a democratic society must tolerate democratic activities of all political parties.
Thus, electoral parties of the extreme political Persuasions must not be interfered with by the police even if their goals are perceived to be anti-democratic. A security service which was genuinely attempting to protect democratic values from subversion would not undermine “the right to dissent and to agitate peacefully for social and political change”.
- The need for a security service
- It should not be automatically assumed that Canada needs a security service such as has developed within the RCMP. The subversion of democratic values could in most cases be combatted by regular police units. To the extent that this is possible, the task of combatting subversion should be assigned to these units. The democratic values we wish to protect may themselves be endangered by an autonomous security service, and even by a semi-autonomous security service within the RCMP.
- In our first brief to the Commission (20 January, 1978), we argued that some of the problems of the RCMP security service derive from its almost independent status. Although it is formally within the RCMP, it appears to operate almost as if it were an independent force. We think that this has contributed to a tendency within the security service to exaggerate the significance of intelligence reports and the seriousness of threats to Canadian “security”. An independent security service tends to overemphasize security threats in comparison to other criminal threats. For this reason, we think the security service should be reintegrated into the regular force. The task of preventing subversion of democratic values should be assigned to regular units such as the Criminal Investigation Branch. If this were done, we think that “security” threats would be placed in a proper context. They would be assessed in relation to other criminal activity and threats of criminal activity.
- This suggestion may be unrealistic in the case of the activities of agents of foreign powers who may be operating in Canada. There may be a special need to coordinate police activities in relation to such activities with the work of armed forces’ intelligence. If so, there may be a need for a special unit within the RCMP to effect this coordination.
- However, most threats of subversion of democratic values are threats of criminal activity. We see no reason why investigative and intelligence work designed to prevent and arrest subversive threats could not be carried on by the C.I.B. and other regular units. The special threat of terrorism is mentioned by the Commission. During periods when the danger of terrorist activity is especially acute, special coordinating units may of course be established to deal with the problem. But these units should be thought of as analogous to the units which may be established from time to time to combat organized crime. We see no reason why units designed to combat subversion need be given a special status involving unique lines of authority and channels of reporting.
- It may be argued that in times of national emergency, or even in “troubled” times, the extent of the risk and the needs of efficiency justify special semi-independent status for RCMP units designed to combat subversion. This may be so. We can all imagine extreme circumstances. But there is no evidence that we face such special threats today. Moreover, there is a very real tendency to exaggerate risks. We would argue that even the “October Crisis” was exaggerated out of proper proportion by the government and did not constitute a sufficiently grave emergency to justify the extraordinary activities the security service seems to have embarked upon in the early seventies. We doubt that the threat to Canada from domestic subversion and terrorism is as great as the threat from organized crime, and we doubt the need for a semi-independent security service.
- It may even be argued that to combat subversion, political intelligence needs to be gathered well before a crime has been committed, and even in cases where it is not likely that a crime will be committed. But this is wrong and, in fact, a dangerous idea. The successful subversion of democratic values would be impossible to accomplish without the commission of a crime. Therefore conspiring to subvert is more likely conspiring to commit a crime, and is therefore itself a crime. we see no reason why the activities of political dissidents need to be placed under surveillance before there is reason to believe the activity is criminal in intent, or likely to result in crime. The contrary view would permit the wasteful and pointless surveillance of dissidents who present no real danger to society. We have in mind here typical arm chair revolutionaries. It would be melodramatic to regard such people as posing a threat.
- The best protection against domestic terrorism and subversion is a government which furthers social justice and exhibits a respect for the substance of democracy and individual rights. Expanding police cowers, expanding surveillance and intelligence gathering activities of police, and thereby interfering with and undermining the exercise of legitimate political rights of citizens, are counterproductive state activities. They increase the risk of subversion by increasing the provocations for political dissent.
- The security service and the law
- If there is to be a security service, it must be made clear that its members are bound to obey the law, as are all the police and all citizens. Further, there must be laws against police interference with citizens’ right to dissent and against surveillance of legitimate political activity. It is unfortunate that this has to be said, but it obviously does; and it must also be said that police illegalities will be prosecuted. The struggle for constitutional government has been in part a struggle to replace the arbitrary rule of men who are outside the law, with the rule of law. The call for “national security” must not be allowed to serve as a blind for the undermining of this most important element of democracy.
- There are pressures on the police to ignore the niceties of lawful behaviour. One is the exaggerated stress on “national security.” Another is a tendency to regard police illegalities as merely “technically” illegal. A third is the fact that RCMP officers may be subject to disciplinary action for failing to obey an order. And a fourth is the force’s policy, reportedly revealed at Commission hearings, of standing behind convicted members to the extent of paying fines and paying salaries of convicted members while they are imprisoned. This constitutes an RCMP policy of tolerating illegal behaviour and must be stopped. Further, it must be made impossible to discipline a member for disobeying an illegal order.
- In connection with this, it needs to be said that the RCMP Act must be overhauled so that internal disciplinary trials give force members the due process guarantees which ordinary citizens enjoy before the courts. As the situation now stands, a member would be prudent not to disobey even an illegal order. Disobeying an order could result in serious disciplinary charges being laid, and the question whether the order was legal would be decided in a service court. Since a member’s rights are better protected before the regular courts than in a service court, and since the force has the above-mentioned policy of supporting convicted members, it would appear prudent for a member to obey an order, even if he believes it is illegal, and take his chances in court. This situation must be changed by abolishing the policy of supporting convicted members, and by ensuring that service trials are conducted competently by impartial persons and under rules guaranteeing due process.
- Bill C50, if enacted, would represent a vast improvement on the present situation. With few exceptions we support the proposals found in this bill with respect to disciplinary procedures. However, service trials should not be a substitute for trials in the regular court system when criminal behaviour is alleged. Members of the force accused of illegal behaviour should be treated as any civilian would be treated in similar circumstances. Moreover, to protect members who refuse to obey orders they believe to be illegal, the question whether an order was legal should be decided in a regular court if disciplinary charges are laid. Only a regular court is competent to rule on this question since it requires legal interpretation and not merely an application of internal RCMP rules.
- It must not be thought, in the face of current allegations of police unlawful conduct, that the appropriate way to restore the rule of law is to alter the law so that current police practices are constituted as legal. A concerted policy in this direction would, we believe, be totally misguided. We see no reason to believe that police powers need to be expanded. Canadian police forces have powers in excess of those of police forces in the United States, for example. There may be justification for certain modifications of the law governing police practices, but we believe that a stronger case can be made for reducing police power than for expanding it. We shall elaborate on this claim below.
- Security clearance investigations
- The B.C. Civil Liberties Association has taken an active interest in security classification for the past few years. This interest stems from complaints the Association has received from numerous individuals who have been asked to submit to security clearance procedures and who have asked for our support in making representations to the Federal Government on their behalf.
- Before we comment on some of the more specific questions asked in the Commission’s Study Paper about the role of the security service in security classification, we would like to make a few remarks, equally invited by the paper, about security policy in general as it bears on classification.
- Whenever we have corresponded with the Federal Government about security classification, we have invariably been referred to the Statement made in the House of Commons on October 25, 1963 by Lester Pearson, then Prime Minister. Mr. Pearson said, among other things:
“If our security policies ignored, or did not take sufficiently into account, the basic rights of the individual, they could operate not to defend but to destroy the liberties which are our first concerned The reconciliation of these competing responsibilities and these competing obligations is not easy.”
One of our general concerns is that Cabinet Ministers and others responsible for the administration of security classification have not always shown as lively a sensitivity to all the concerns Mr. Pearson so forcefully expressed in his statement.
- Consider, for example, the question asked in the Commission’s Study Paper: “What are the threats to the security of Canada which a security service responsible to the Government of Canada should guard against?” Our sense is that the Government has shown an inclination to give too broad an answer to this question. On February 4, 1976 Warren Allmand, the then Solicitor General, wrote to us as follows:
“Agents are recruited in Canada for a variety of reasons and there is ample evidence to show that travel in Communist dominated areas and on their passenger transportation systems has led to attempts by intelligence officers of these governments to blackmail or coopt Canadian citizens to carry out assignments which are not in Canada’s best interests…. This does not necessarily involve defence secrets or classified information but sometimes very mundane information which has no apparent significance at the time. It also involves the employment of such recruited personnel in disruptive or destructive activities which affect unions, industry, environment, etc.”
All these remarks were made by way of justifying present security clearance policy. It seems evident to us that if Government sees as part of the aim of security clearance policy the protection of “very mundane information” as well as “unions” and whatever else might be encompassed by Mr. Allmand’s “etc.”, it cannot also be giving the kind of weight to the protection of civil liberties which Mr. Pearson insisted that it must. Such an uncircumscribed view of the object of security classification would naturally seem to lead to an insistence on too high a grade of security clearance or on clearing too wide a class of individuals.
- Yet another example which points to the same moral is to be found in another letter from Mr. Allmand dated January 19, 1976. In this letter he was replying to questions we had raised about the application of security clearance policy to administrative personnel employed by the Penitentiary Service. We asked, among other things, why such persons were being required to complete a questionnaire which asked them to note travel to communist dominated areas since 1946. Mr. Allmand remarked: “…in the case of penitentiary employees, question 16 of the form has little relevance, and is treated accordingly.” The response was not to cross out the question or to make the answering of it optional, but to continue to insist that it be answered while acknowledging its irrelevance.
- Perhaps the most telling passage in this letter, however, was the following:
“A penitentiary employee who is concerned about an incident in his or her past, or who has an exploitable defect in his character, is a possible target for persuasion, coercion or blackmail. Inmates, or, their friends outside, may use an employee’s vulnerability to bring pressure on him. Such an employee may, for instance, be pressured to cooperate in smuggling contraband (such as drugs and weapons) or arrange escapes. Clearance procedures may uncover potential problems of this nature.”
The notable feature of this statement is that it is expressed in the language of possibility throughout. Of course, it must be admitted that such scenarios could take place. But their bare possibility is not enough to carry the argument if the kind of reconciliation of which Mr. Pearson spoke is genuinely to take place. There must also be some evidence about the substantial likelihood of such occurrences. A member of the Penitentiary Service wrote to us as follows:
After 10 years in the Penitentiary Service, I cannot think of a single case where an employee was pressured by inmates into doing anything, dangerous, illegal, or otherwise, on account of some skeleton in his closet, character defect, past association, or anything of that nature. If any such events have occurred, they have been extraordinarily well hidden by the bureaucracy… so far as I am aware, such things occur on account of poor training or inadequate intelligence, not pressure or untrustworthiness.
- So far we have concerned ourselves with the scope of the Government’s apparent understanding of threats to security as well as the need to assess probabilities rather than bare possibilities, especially in those areas where espionage is not an issue. There is, however, one further, parenthetical comment we would like to make. We note that the Commission considers Review Mechanisms on p.24 of its study paper. one of our concerns is that the existing review mechanisms do not appear to extend effectively to non-governmental employees who are required to submit to security clearance in virtue of a contract between the Government and a company. The review procedures mentioned in the Financial Administration Act, (which have been preferred by the Federal Government to the proposal made by the Royal Commission on Security for a security panel) apply only to employees in the public service. Although we have asked the Government about the existence of review mechanisms for those who are not public servants, the best reply we have received from Otto Lang (August 29, 1978), who was then acting as Minister of Justice, is that “an effort” is made to insure the kind of review promised by Mr. Pearson in 1963 through consultation with the employer in the private sector. An “effort,” however, is demonstrably not the same as a mechanism and even this assurance might seem somewhat hollow in light of a letter we received from CP Telecommunications on May 27, 1976:
“In the event an employee should fail to qualify for security clearance, we would not, in the unlikely event we knew the cause, be able to disclose the reason(s). Any appeal against a negative decision concerning a Security Clearance would have to be directed to the Government Agency responsible for the carrying out of such Security Clearance investigations.”
Where the Government claims that it makes an effort to enlist the cooperation of industry to ensure a review, one industry responds that the responsibility for any review or disclosure of reasons for failure to pass clearance is the exclusive responsibility of Government. In the circumstances it is easy to see that injustice could readily occur.
- On p. 8 of its Study Paper the Commission asks a series of questions dealing with the role of the security service in security clearance. It seems best to deal with them in the reverse order of their asking.
- The Commission asks whether the security service should do more than collect relevant information and, in particular, whether it should also make recommendations about the suitability of individuals. We note that Lionel Chevrier, then Minister of Justice, in his statement to the House of Commons in October of 1963 answered the Commission’s question with a firm negative.
The opposing view was taken in 1969 in the Report of the Royal Commission on Security (p. 34), for reasons which we do not find very compelling. In our view, Mr. Chevrier was right and the Royal Commission mistaken. In particular, we do not think there is good reason to believe that an agency which has special skills in ferreting out information will be similarly adept at evaluating its significance. On the contrary, given the tendency of such agencies to develop their own special view of the world as a result of their preoccupation with potential threats to security, we believe that it would be inclined to give too much weight to the threats it perceives with the result that many talented individuals would be wrongly excluded from the public service. Moreover, even if the recommendations were not strictly binding, they would of their nature carry considerable force. The effect would be that an immense power would be concentrated in a single agency whose recommendations in practice would be very difficult to review. The concentration of such power carries dangers which make the alternative in which a multiplicity of hiring agencies with differing needs and problems carry the responsibility of evaluating any data which has been gathered preferable.
- The Commission also asks whether the security service should continue to collect and assess information as to character weaknesses as well as possible disloyalty. This is a difficult question to answer straightforwardly since, no doubt, there are at least some positions in the civil service where the safety of the nation depends so vitally on the actions of a given individual that such assessment may be warranted. We are not convinced, however, that there are many such positions. But it is from just such cases that the argument for a general need to collect such information is commonly made. Consider, for example, the Royal Commission’s reasoning on p.36 of its Report:
“It is a fact, demonstrated by a large number of case histories, that homosexuals are special targets for attention from foreign intelligence services…. In general, we do not think that past homosexual acts or even current stable homosexual relationships should always be a bar to employment with the public service or even to low levels of clearance. We do feel, however, that, in the interests of the individuals themselves as well as in the interests of the state, homosexuals should not normally be granted clearance to higher levels.”
Apart from the objectionable and irrelevant paternalism of the underlined remarks, we believe that there is no easy inference from the case of those employees who are natural targets for foreign agents to employees of the public service in general. It seems to us that in most areas of the public service there is no sufficiently compelling risk to warrant the kind of investigation into the private lives of individuals or their political preferences which might be warranted, if at all, only in very special cases.
- Finally, the Commission asks whether the security service of the RCMP should continue to carry out the field investigations for all those employed in the federal public service… who require security clearance. If our concerns with respect to the other two questions are met, we feel less insistent about how this final one is answered. A statement from a government document defining however, classified information can usefully be cited to make an important distinction. The document says: “… in the simplest terms, it is information which, if given to unauthorized persons, could endanger national security, harm the prestige of Canada, be of advantage to a foreign power, or cause damage to an individual.” The risks noted strike us as sufficiently different as to make it far from clear that it is desirable to have them all investigated by one and the same agency. In particular, as between the endangering of national security and causing damage to an individual there is an altogether different order of magnitude.
- Powers, methods and remedies
- Electronic surveillance and mail opening
- The ability of the police to undertake electronic surveillance and the opening of private mail undermines the right of privacy. The importance of this fundamental right is well expressed by Edward J. Blaustein in his article “Privacy as an Aspect of Human Dignity: An Answer to Dean Prosser”, in the New York University Law Review 962 (1964), p. 973:
The fundamental fact is that our western culture defines individuality as including the right to be free from certain types of intrusions. This measure of personal isolation and personal control over the conditions of its abandonment is of the very essence of personal freedom and dignity, is part of what our culture means by these concepts. A man whose home may be entered at the will of another, whose marital and familial intimacies may be overseen at the will of another, whose conversations may be overheard at the will of another, is less of a man, has less human dignity, on that account. He who may intrude upon another at will is the master of the other and, in fact, intrusion is a primary weapon of the tyrant.
- It must be remembered that it is not only the privacy of the “suspect” that is violated by electronic eavesdropping and mail openings, but also that of the persons who are communicating with the suspect. Thus, if I happen to speak or to write to someone who, unbeknownst to me, is suspected by the police, my communication with that person may be overheard, even though I may be perfectly innocent of any illegal behaviour and not suspected by the police.
“An examination of the American experience reveals that to date, some 1,500 people have been convicted of criminal offences arising out of 1969 and 1970 cases involving electronic bugs. During the course of this bugging, however, the American authorities overheard more than 40,000 people in more than a half a million conversations. The overwhelming number of these people, of course, were probably innocent of wrongdoing. The trouble is that electronic bugs cannot discriminate. Thus, as the practice increases, so does the vulnerability of increased numbers of innocent people.”(1)
- The argument that electronic surveillance and mail openings would be useful to the police is not sufficient to justify the clear invasion of privacy that this entails. If either or both of these abridgements of civil liberties of Canadians are necessary for the protection of the Canadian public, that fact has not been Proved by the government. In fact, testimony based on United States experience with special wiretap powers suggests that while these abridgement of civil liberties may sometimes be of help to the police in performing their duties, they are certainly not indispensable. (2) There is therefore no compelling justification for the invasion of privacy involved in the use of these powers.
- If, despite this, the police are to be allowed to engage in electronic surveillance and/or mail opening, the use of these powers must be kept to a minimum and only authorized under the strictest supervision and control. We recommend:
- that authorizations of such abridgernents of civil liberties be provided
- only with respect to the most serious crimes such as threats of subversion of democratic values, or in circumstances where there are imminent perils to human life or limb, and
- only if the police can demonstrate that the use of such special methods of investigation is essential, and not merely helpful, if the person suspected is to be apprehended, and
- only if the police can show that this suspicion of the person in question is reasonable.
- that judicial authorization be required; that it be given only for short periods; and that it be given only in cases where conditions (a)(i)–(iii) are fulfilled.
Even this safeguard of judicial authorization is too weak, however. It is interesting to note that in 1976, for example, 1,152 applications for original authorizations or renewals were made to the courts (Solicitor General’s Report for 1976). All, without exception, were approved. Similarly, in the United States in the four years ending in 1973, only two applications for warrants authorizing wiretapping were refused by the courts out of a total of 1981.(3) This suggests to us that the police may be seeking especially sympathetic judges and thereby avoiding effective judicial examination of their cases for authorization.
We therefore recommend:
- that there be a panel of judges, any one of whom may grant an authorization at a given time; that the composition of this panel rotate regularly; and that only a judge on this panel may grant an authorization:
- that similar conditions be required to be fulfilled before an authorization can be extended,
- that evidence gathered from unauthorized or illegal electronic eavesdropping and mail opening be inadmissible in court and
- that if authorized surveillance is followed by a charge and trial, that the victim of the surveillance have, at his trial, the right to challenge the validity of the initial authorization.
And in respect to mail opening, if any such invasion of privacy is countenanced by future legislation, we emphasize the need to include provisions similar to those already governing electronic surveillance so that
- the police be required to notify all persons whose mail has been opened by the police of this fact within ninety days of the termination of the mail opening. This safeguard introduces some small degree of accountability in an otherwise completely secret (from the citizen’s point of view) practice of surveillance, and some small deterrent against needless surveillance.
- that the Solicitor-General and provincial Attorney Generas be required to include statistics regarding mail opening in the annual statistical reports they publish dealing with the numbers of applications sought, the number granted, the number of cases where surveillance led to charges being laid, the number of convictions in such cases, and so on.
- Payment for testimony
- that authorizations of such abridgernents of civil liberties be provided
- The Crown should be required to disclose any and all incentives being offered to any of its witnesses. There should be no restriction on defence counsel’s access to criminal records of any witness. Where the circumstances reveal that incentives of any kind were used to induce a witness to testify, the presiding judge should have discretionary power to exclude that witness’s entire testimony as unreliable.
- It is not uncommon for the prosecution to “hire” a witness. In return for testimony, the witness may receive large sums of money, exemption from prosecution or partiality in treatment. The latter can be powerful incentives because often the witness was a participant in the alleged crime.
- Should our legal system be dependent in any substantial way on payment of money or other incentives to witnesses? The BCCLA’s answer is “no”. Such incentives tend to bring the entire administration of justice into question, if not into disrepute. There are two major reasons for this.
- First, such payments encourage witnesses to lie. Clearly the prosecution wants witnesses to testify against the accused. Clearly, the witness has much to gain by so testifying. Thus, the witness has powerful motivation to distort his testimony—indeed, to lie.
- Knowledge of the fact that witnesses of this type are giving testimony in the courts tends to discredit the very giving of testimony. (Indeed, although we do not attempt here to deal with the broader issue, the whole practice of paid informers has the same discrediting effect on the justice system.)
- Second, the fact that juries (and even judges) are unaware of the payments or incentives makes it impossible for them to properly assess the credibility of such witnesses. They remain ignorant of powerful and relevant incentives, perhaps conflicts of interest, of the witness. There must even be cases where the jurors are themselves suspicious that payments have been made, thus introducing a new level of uncertainty into their deliberations.
- One can imagine the outcry if defence counsel were to pay witnesses. The BCCLA would prefer that the entire practice of prosecution payment of witnesses be stopped. if, however, the authorities believe that the practice has some merit, it should be permitted only where the judge and jury are fully cognizant of it, and where the judge has the power to exclude the testimony of such witnesses.
- The Official Secrets Act
- This submission regarding the Official Secrets Act is primarily restricted to a commentary on the legislative framework that that Act provides for the RCMP This should not of course be seen as an adoption of the view that the Official Secrets Act as drawn, with the exception of those provisions affecting the RCMP, is deemed by our Association to be in Canada’s best interests. On the contrary, we believe that the Act is far too widely drawn in many respects. To provide but one instance, it seems quite clear that the Official Secrets Act, with its framework of trials held in camera and the extraordinary presumptions against an accused, can be applied beyond circumstances normally embraced in the term “national security”. It is, for example, an offence, among other things to provide a “sketch, i.e., “any mode of representing any place or thing’ that… might be… directly or indirectly useful to a foreign power”. It would appear, since no military or political connotation attaches to the offence defined in Section 3 (1)(b), that for instance commercial espionage is comprehended in the Official Secrets Act.
- However, as noted it is not our purpose in this submission to provide detailed comments on all excesses of the Official Secrets Act.
- Even purely in terms of police powers, we believe that the Official Secrets Act is too widely drawn. The Commission has specifically invited an examination of Section 16, introduced into the Act by amendments The British Columbia Civil Liberties Association would suggest that Section 7 (1) and 11 (2) are equally worthy of consideration.
- Section 7 (1) and Section 16 may conveniently be considered together. Section 7 (1) may be said to provide the forerunner, in the case of telegraphic communications, for the broad powers of Section 16.
- Each of those Sections provides that a Minister of Cabinet may direct a form of interception of communications on what could loosely be described as security grounds. While Section 16 is in minor respects more restrictively drafted, for example by the requirement in Section 16 (2) that the Solicitor General be satisfied by “evidence on oath,” in substance each Section contemplates political, as opposed to judicial, decisions as to the appropriateness or necessity for interception of “any communication.”
- While Section 16 appears to have a fairly restrictive definition of what “subversive activity” justifies the Solicitor General in making an interception order, in fact, since there is no review procedure and no requirement that the evidence on oath be made known to the person affected, or even that the interception ever be disclosed at all, it can be safely said that Section 16 of theOfficial Secrets Act licenses a broad and indeed unknown range of interceptions for which there is no true accountability.
- The B.C. Civil Liberties Association also takes exception to the broad powers directly conferred on certain RCMP officers by Section 11 (2) of the Official Secrets Act, The removal of review powers from the Judiciary is even more striking in Section 11 (2). In this case, the decision to replace the normal process of issuance of a warrant by what amounts to an administrative direction cannot even be said to be political. A “senior officer” can confer the same powers as a warrant would give without (even in theory) being required to be satisfied on oath or otherwise that there are reasonable grounds to suspect an offence under the Official Secrets Act. The possibilities of “fishing expeditions” under Section 11 (2) would appear to be unlimited. It would appear to the Association that under the current, and highly unsatisfactory state of the Official Secrets Act, some of the more notorious excesses of the Royal Canadian Mounted Police in effecting entries and seizures of documents “not provided for by law” might have been technically correct if the procedures envisaged in Section 11 (2) had been administratively attended to.
- The BCCLA would summarize its observations on the Official Secrets Act by observing that deficient though it may be in many other ways, Section 16 of the Official Secrets Act at least restricts its definition of subversive activities so that non criminal political activities of the type referred to at page 5, paragraph 15, of the “Issues Paper” on which this submission is based, are not theoretically the subject of interceptions.
- However, whatever merits Section 16 of the Official Secrets Act may have in appealing to restrict somewhat the scope of its operation, the lack of a review procedure to ensure judicial review of the Solicitor General’s decisions makes the apparent “restriction” meaningless. The Association would add that the large number of ministerial authorizations reported make it obvious that in fact the Solicitor General’s exercise of discretion must amount to little more than a rubber stamping of an administrative report from below. In reality power has been transferred from the Courts to security officers, rather than to the Minister whose own involvement would in our view be disquieting enough.
- Emergency powers
- At the time of the invocation of the War Measures Act in 1970, the BCCLA took the position that “milder legislation” to deal with emergencies should not be enacted. Our judgement on that question has not changed. Any emergency legislation would necessarily retain many of the dangerous powers of the War Measures Act. Yet because it would be less extreme than this Act, governments might find it difficult to resist the temptation to invoke the milder legislation in inappropriate circumstances. Thus the risk of emergency powers being invoked would increase even though those who are understandably anxious about invocation of the War Measures Act itself would be given a false sense of security.
- There could be circumstances under which powers so undefined and sweeping as those implicit in the War Measures Act should be invoked. But all circumstances less extreme should be dealt with through the potent and broad powers now available to government, which at least in principle maintain due process of law and respect for citizens’ liberties, Even there, of course, there are grounds for anxiety, but we believe nonetheless that the community’s welfare is better served by reliance on the present provisions of the Criminal Code than it would be by special powers of the sort often argued for.
- We still believe, as we did in October 1970, that the War Measures Act itself should be amended. There should be express provision that invocation of the Act be followed at the earliest possible moment by formal Parliamentary consideration of the invocation. We also believe that provision should be made for review procedures conducted by an independent tribunal, the purpose of which will be to “clear” the reputation of and to restore to pre-invocation status those who were caught and damaged in the Act’s web but were released without charge.
- We have one final comment to make concerning emergency powers. We call the Commission’s attention to paragraph 25 of the Constitutional Amendment Bill which, through its remarkable scope and unqualified language, constitutes a standing invitation to the easy abrogation of all those rights of Canadians which were, presumably, enshrined in the previous 24 paragraphs. Paragraph 25 is, quite simply and baldly, a “notwithstanding” clause governing all that precedes it. The constitutional grounds for abrogation of rights which it sanctions are so broad, and potentially so destructive of those rights, as in effect to render the previous paragraphs dead letters.
- We appreciate that the Commission is not directing attention to the proposed Constitution. Nonetheless, paragraph 25 offers a special instance of the type of “milder legislation” which we believe it wholly unwise for Canada to accept, and it is for that reason that we call your attention to it.
- Complaints procedure
- This Association supports the recommendations of the Marin Commission that there be a Federal Police Ombudsman. We think it would be appropriate for such an ombudsman to handle complaints with respect to the security service as well as other units of the RCMP, and we see no reason why the ombudsman could not be given the necessary powers and security clearance to enable him to do so.
- The Marin Commission recommended that police should automatically be prosecuted whenever sufficient evidence to establish a prima facie case of criminal misconduct becomes public. It recommended that there be a federal prosecutor within the Justice Department who has special responsibility for prosecuting and investigating police criminal behaviour. We tentatively support these recommendations, but, for reasons which we detail below, we think it would be preferable to have a person completely independent of the Justice Department who is authorized to initiate prosecutions. He would be authorized to investigate allegations of misconduct and to initiate prosecutions even when a prima facie case has not become public knowledge. We suggest below that this special prosecutorial power might be attached to the position of police ombudsman, inasmuch as evidence of misconduct will come before the ombudsman, and inasmuch as he will be required to investigate allegations of misconduct.
- Exclusion of illegally obtained evidence
- The debate surrounding the exclusionary rule has unfortunately focussed on one feature.4 Its effect in deterring illegal police methods. Although this feature is of importance, it is not of central importance here because the present issue is the merit of the exclusionary rule itself, Still, because this has been its focus, the debate has been misleading. Insufficient attention has been paid to an overriding value in any society committed to fairness and due process of law, and which it is the clear merit of the exclusionary rule to serve: the legal integrity of the judicial process. At a minimum, prosecutions and convictions for illegal acts should not rest on grounds which are themselves tainted by illegality. It is undeniable that that goal is largely achieved by the exclusionary rule.
- We do not claim, nor need we claim, that illegal police activities will be significantly deterred by the rule’s adoption. Nor do we suggest that other means of reducing police use of illegal methods should not be considered.5 We do argue, however, that the exclusionary rule, in itself, does preserve a vital degree of integrity in the judicial process, that that degree of integrity is visible, and is not achievable in any other way at this level of the judicial process.
- There appears to be much agreement among those who have studied the matter that the exclusionary rule does not have clear and substantial deterrent effect on illegal police practices. The reasons cited axe many, varied and sometimes mildly surprising. However, it would be a mistake to draw the conclusion that the rule either should not be adopted or should be abandoned. If the problem is seen to be that of policing the police then all are in agreement that there is no simple solution; the problem is too ancient, complex and frustrating. Therefore, that the exclusionary rule contributes only slightly to reducing the incidence of illegal police practices is not surprising. Yet even here there are some mitigating points worth noting. First, the exclusionary rule may have significant deterrent effect with regard to the policing of some serious crimes, e.g. homicide. However, it appears to have least deterrent effect on police methods connected with gambling, drugs, and the carrying of concealed weapons, where the incidence of illegal searches is probably highest. Second., because of the much closer working relationship between prosecutors and law enforcement officials in Canada, the rule’s deterrent effect on illegal police practices might be more substantial here than it has been in the U.S.
- The impact of the exclusionary rule on effective law enforcement is unclear. But there are also some confused lines of reasoning which lead to exaggerated claims of the negative impact of the rule on law enforcement. One such muddle stems from the sometimes unstated, but nonetheless operating assumption that the exclusionary rule itself somehow creates the proscription on illegally obtained evidence. Given that assumption, it seems to follow that if we didn’t have the rule then the police would not have their hands partly tied and law enforcement would, therefore, be more effective. That line of reasoning is confused. The legal proscriptions against certain means of obtaining evidence are independent of the exclusionary rule, and may be debated independently of the merits of the exclusionary rule. If the proscriptions are thought to need weakening they should be assessed directly by reconsidering the needs of law enforcement, the values of due process and the like.
- It is true that under the exclusionary rule no redress is provided for any innocent people who have been subjected to illegal police methods, and it is true that the rule pretty well insures freedom for guilty people who have been subjected to illegal police methods. But failure to provide some kind of effective redress for the innocent is not a fault of the rule. Redress can only be provided by other measures, difficult though they may be to devise. Convicting the guilty on the basis of illegally obtained evidence provides no redress for the innocent either. In any case, the problem of providing redress for harm done innocents by the law is not confined to the area of the exclusionary rule’s application, and may not even be most pressing there.
- The rule does regularly allow freedom for the guilty. But if it is reasonable to suppose that the typical crimes for which the rule would have most application would parallel in Canada what has been the case in the U.S.—gambling and drugs—then the price is not high. Freedom for those guilty of gambling is hardly a serious matter: many believe that gambling should not even be a crime. And it is by now surely evident that the drug problem is not centrally one of law enforcement and cannot be dealt with effectively through police methods of any reasonable sort. Moreover, convictions based on illegally obtained evidence may be bought at the high, if intangible price, of a widespread cynicism concerning the police and a long-term undermining of respect for the judicial process.
- It is sometimes said that the exclusionary rule makes for bad law enforcement because it insures freedom for two guilty parties, the criminal and the police (who have obtained evidence illegally). Once again, however, that is no fault of the rule. Other measures are required to govern the police, among which criminal prosecutions, while they may sometimes play a role, are not likely ever to be very effective. The exclusionary rule says nothing about whether police who have obtained evidence illegally are to be disciplined, punished, or ignored.
- Another complaint directed against the rule is that it encourages the police to commit perjury by denying that evidence was obtained illegally. But all rules which prohibit desired things can lead men to perjure themselves. The exclusionary rule is not special in this regard. It would seem in any case that, since perjury by police is not confined to cases arising out of the exclusionary rule, it is a problem which must be approached from other angles, and does not warrant an attack on the rule.
- A more serious charge against the rule is that it encourages the police to impose extrajudicial punishment and harassment on those known to be engaging in criminal activity, but against whom it is difficult to obtain evidence legally. If it were true that the exclusionary rule produces an incidence of extra-legal punishment significantly greater than would be the case without the rule, then there would be a serious problem, However, this is not known to be true. It is a plausible conjecture worthy of investigation, but should not be taken to be a critical objection to adopting the exclusionary rule.
- Prosecution of police criminal behaviour
- We agree with the recommendations of the Marin Commission as they are summarized in paragraph 42 of the issues paper. Police officers accused of criminal behaviour should be subject to prosecution on the same basis as members of the public. To ensure that this in fact occurs, there should be federal offices with the position and powers of a police ombudsman and of a police prosecutor. If these offices were combined, the incumbent would deal with complaints of police misconduct and be empowered to prosecute if criminal behaviour is found.
- It seems obvious that police officers accused of criminal misconduct should be subject to prosecution on the same basis as members of the public. It is true that police criminal behaviour will probably prove to have been well intentioned and directed toward what was believed to be the public good. But the same could be said for many “political crimes” which it is in the public interest to prosecute. This should be no better excuse for police misconduct than for such political crimes.
- Constitutional responsibility for the administration of justice falls on the provinces. The provincial attorneys-general have jurisdiction to prosecute RCMP members accused of criminal behaviour. But prosecution will be impossible if the provincial Attorneys General cannot gain access to sufficient information about police activities. In the case of RCMP units working under contract to the provincial governments, there should be no insurmountable problem. The commission must investigate whether these contracts do in fact give the provincial attorneys-general sufficient access to information to enable monitoring, investigation and prosecution of police behaviour. In the case of RCMP federal units, including the Security Service, the provinces will have no contractual right to information. The problem of access to information is aggravated by the ability of the federal government to deny access on grounds of national security under the Federal Court Act and the Official Secrets Act. This power could be used to frustrate efforts to ensure that police behaviour is kept within the bounds of law. We therefore believe that these two acts must be amended to provide for judicial review of government claims that documents required in the judicial process ought not to be released on grounds of national security. The Commission must seriously consider how police illegalities can be effectively prosecuted without some judicial means of giving prosecutors access to evidence which the government might wish to conceal.
- This raises a further problem. It is unfortunate clear that the Attorney General for Canada is not at arms’ length from the RCMP and cannot be expected to be willing to prosecute whenever prosecution is warranted. Under the doctrine of ministerial responsibility, the Solicitor General, and hence the government, may be regarded as politically responsible for misconduct within the RCMP. The act of prosecuting could serve to distance the government from the wrongdoing in the public eye to some extent. But political expediency may as often dictate covering up the misconduct. It is difficult to see how this problem could be avoided unless agencies clearly distant from the police were to have prosecutorial powers.
- The attorneys-general of the provinces are at arms length from the federal units of the RCMP. But provincial attorneys-general may have difficulty gaining access to sufficient information about the operation of these units to enable prosecution to go forward when appropriate. RCMP units which are policing the provinces on contract to the provinces may not present this latter problem to the provincial Attorneys General. But these units may not be at arms length from their respective provincial governments. If the federal-provincial contracts permit the provincial governments to set policing policies and priorities and to monitor police activities, and if the contracts require RCMP officials to report regularly to provincial officials, the problem of lack of distance will arise.
- We do not suggest that there should be weak civilian control of the police. On the contrary, w believe it is imperative that the RCMP be under civilian control, and appropriate that provincial units be under provincial civilian control. We merely point out that as the level of government control rises, the perceive eve of government responsibility for any police misconduct will also rise, and correspondingly, the likelihood that the government will prevent such misconduct way fall.
- There may be a solution to this problem. it seems a sensible suggestion that there be a federal police ombudsman to deal with complaints against the police not alleging criminal behaviour. We suggest that the ombudsman or some other equally independent party, be given authority to prosecute police criminal behaviour. This person would not prosecute as an agent of the Crown, but the legislation establishing his office would ensure that he has standing to prosecute police criminal misconduct. He would have security in his office, the sort of security given judges, but for a fixed term. He would be able to second force members to his office to enable him to carry out investigations. He would have the highest security clearance so that he could not be denied documents needed for his investigations. We think that such an office, perhaps combining the role of ombudsman and prosecutor, could have sufficient independence both from the government and the police to serve well the national interest. The prosecutorial powers attaching to this office would not usurp the existing authority of either the provincial or federal Attorneys General. The police prosecutor would bring forth private prosecutions, in effect, but he would be mandated to act only in the public interest.
- British Columbia Report on RCMP surreptitious entries
- The British Columbia Attorney General has accepted a recent report by his Deputy on the alleged “surreptitious entries” of the RCMP in British Columbia between 1972 and 1976. On the basis of fragmentary and incomplete reasoning, the report concluded that it would not be in the public interest to prosecute anyone involved in any of the 41 investigated cases of entry without legal authorization. As a directive for future police behaviour, the report asserted only that entering a premise without proper authority provides grounds for prosecution and may result in disciplinary action. This is not an assertion of resolve to end police wrong-doing; it is merely a summary of the existing legal situation and disciplinary rules. The report proposes no concrete mechanism to prevent future police misconduct. it relies on existing institutions and on a proposed new Police and Law Enforcement Division of the ministry which is intended to fulfil the need for “administrative and policy co-ordination.” It would be difficult to imagine weaker recommendations. In the end, of course, rules and institutions are no guarantee against police wrongdoing. In the end, our freedom and our democracy rest on the good will and intelligence of police officers, and on the intelligence, resolve and commitment to the public interest of civilian authorities. We are not confident that our political authorities have resolved to correct the present situation.
- We do not claim to know whether it would be in the public interest to prosecute in any of these 41 cases. The December 11, 1978 report by R. R. Vogel, Deputy Attorney Genera, gives only a very brief summary of the circumstances of four cases, and only a categorization of the remaining 37 cases into two types. No justified conclusion can be drawn on the basis of such superficial information. In any case, we certainly have no interest in seeing anyone punished as a scapegoat or to ensure retribution.
- However, we can see that the reasoning stated in the report is unacceptable. Astonishingly, the possible value of prosecution in deterring future police misconduct is not even discussed. The report acknowledges a prima facie case of a criminal offence in all 41 cases. it argues that, despite this, prosecution would not be justified. The argument is as follows:
- The 41 cases involved only normal police practices and the motives behind the entries were the same motives which are behind all police investigative work.
- The practice of unauthorized police entries was “documented” and “acknowledged” in court, and this led police to assume the practice was lawful.
- Legal opinions received from the federal Department of Justice, RCMP Legal Branch, and provincial officials suggested the view that the practice was lawful.
- The decision in R. v. Coutellier, Cobb, and Cormier is reason to believe the penalty would be light even if a conviction were obtained.
- These considerations can quickly be disposed of. First, R. v. Coutellier concerned an investigation in relation to national security, while none of the four most serious B.C. cases involved national security as far as has been revealed. This is arguably a difference the courts would find relevant. Moreover, the sentence in this case was not appealed by the Crown, so the precedent has not been tested. Second, the fact that the courts have admitted illegally obtained evidence clearly does not mean that it was deemed lawful for the police to have obtained the evidence by means of an unauthorized entry of a premise. The latter issue would have to be tested separately in court before any such conclusion could be warranted. Third, the fact that unauthorized entries were committed in the mistaken belief that they were lawful is not an adequate excuse. In any case, we note that according to the report, legal advice was received from parties which were obviously not entirely disinterest and the advice might be thought to have involved some wishful thinking. Moreover, the claim that the RCMP had legal opinions from three different sources as to the legality of their practices does not square with the remark in the report that “none of these concerned at that time squarely addressed the issue of the propriety of the police practices” (p. 12). We wonder whether legal opinions were actually sought and obtained. Finally, the claim that the motives and practices were normal to police work is irrelevant, except, possibly to the question whether prosecuting in these cases would involve scapegoating. But if everyone involved in the cases were prosecuted, regardless of rank, we see no reason to believe anyone would be scapegoated.
- It is obvious that worthy goals can lead to the adoption of criminal tactics. Police criminal behaviour is not unique in this respect. We emphasize that worthiness of motives can exempt police from prosecution no more than it can exempt civilians in similar circumstances. III. Governance of the security service
- We have little to add here to what we have said above and in our first brief to the Commission submitted January 20, 1978. In this section, therefore, we refer you to, and remind you of, those recommendations and comments.
- We argued above that, as far as possible, the present RCMP Security Service should be reintegrated into the general force. Still there may be a need to maintain a Security Service with its own lines of authority and channels of reporting to deal with threats to national security posed by agents of foreign powers or big foreign groups operating in Canada.
- Executive control and responsibility
- Security operations should be tightly controlled by guidelines much more detailed than those issued in March 1975. Operational decisions within the guidelines could be left to the Security Service, if the Guidelines were sufficiently detailed. However, extraordinary operational decisions involving grave threats to national security or sensitive political judgement or “questionable methods” should require approval by at least the responsible minister.
- The guidelines should reflect this by clarifying extraordinary operational decisions which require ministerial approval. As a minimum, the Security Service should be required to operate within the law, and any decision to act unlawfully should be considered extraordinary. We hope that no minister would authorize unlawful methods unless he judged the risk to national security to be grave.
- Parliament and an Independent Security Commission
- An independent security commission should be established which is responsible to Parliament and authorized to oversee the Security Service and to scrutinize proposed security operations. The responsible minister would be required to refer all extraordinary operational decisions and all general policy matters to this commission as soon as possible.
- We suggested in our first brief to the Commission that there be an independent non-partisan authority which, although it would report to Parliament, would not have members of Parliament as members. This proposed Federal Security Commission would be small enough to handle effective decision making, but large enough to encompass different backgrounds and viewpoints. The members would be persons of stature and integrity, and would be appointed by Parliament on the recommendation of the minister for, say, a five year term. The Commission would have sufficient staff and resources to carry out its own independent assessment of security needs and appropriate security questions.
- The purpose of the proposed commission is to work with the Security Service and the minister in identifying and defining authentic threats to security, and to scrutinize proposed operations to see that they are both justified and effective. We hope that the commission would reduce the danger of the Security Service being used for partisan political purposes.
- The commission would neither eliminate ministerial responsibility for the Security Service nor undermine the role of Parliament. The minister would of course have the final authority to direct Security Service operations, to set policies, and to refuse or to authorize extraordinary measures. The commission could serve as an advisory committee to the minister, and would serve to review ministerial decisions. Since it would report to Parliament on a regular basis, it could also serve as a resource for Parliament in holding the Security Service accountable, even though it would be bound not to breach security in its reports. In effect the commission would provide a means of ensuring that the Security Service is accountable to Parliament while maintaining security precautions.
- We should emphasize that this proposal is consistent with our proposal for an office of the Federal Police Prosecutor. Illegal Security Service operations, even if approved by the minister and by the Security Commission, would still be liable for prosecution. This would provide an effective check on excesses and on any attempts to use the Security Service for partisan Purposes.
- Role of the judiciary
- We advocate an expanded role for the judiciary in reviewing executive decisions and actions related to national security. For example, Section 41(2) of the Federal Court Actshould be changed to permit a judge to examine any document which a minister has certified should be withheld from court proceedings and to override the minister’s decision if he judges the minister to be in error in his assessment of the consequences of releasing the document. Judicial authorization should be required for any interceptions of private communications. There should be no differentiation between national security cases and criminal cases in the acts governing such actions.
- Provincial jurisdiction
- Under section 92(14) of the BNA Act, the provinces have responsibility for the administration of justice, which has been held to include “the policing of the country” and “the suppression of crime and disorder”, (Reference re. Adoption Act, etc. (1938) S.C.R. 398 our p. 403). In light of this, to the extent that the Security Service attempts to combat domestic subversion involving threats of criminal behaviour, it is properly under the authority of the provinces. The same could be said with respect to other RCMP “federal units”, mutatis mutandis. only if the Security Service limited itself to activities which arguably pertained to national defence and not to law enforcement would it be outside the constitutional reach of the provinces. Even in this case, since the provinces would be responsible for prosecuting any criminal behaviour on the part of the Security Service, we contend that the provinces would have to have access to information about Security Service operations when suspicion of criminal activity surface. Unfortunately, as the recent Supreme Court decision in Keable v. Procureur General du Canada, et al.illustrates, the federal government has the authority under the Official Secrets Act and the Federal Court Act to suppress needed information. We remind the Commission of our recommendations concerning these acts.
- In eight provinces, the RCMP provides provincial and municipal Police services under contracts between the provinces and the federal government. It is our understanding that the B.C contract Provides that the internal management of the force is the responsibility of the federal government. It concerns us that this clause, might deprive the provinces of effective control over provincial law enforcement. For example, given this clause it is questionable whether provincial attorneys general could audit internal RCMP practices to ensure the force operates within the law, establish priorities in law enforcement, set overall provincial police policies, and handle citizen complaints. If our information is correct, the B.C. contract contains a clause to the effect that nothing in the contract shall be interpreted to conflict with provincial responsibility for the administration of justice. But we question whether the contracts do not in fact create a situation which conflicts with this provincial responsibility. If so, this is not merely a constitutional problem. It may mean that the RCMP provincial and municipal units are not under effective civilian control. We think it highly doubtful that the federal Solicitor-General could effectively monitor eight provincial police forces as well as the RCMP federal units. The evidence of how effective the Solicitor General’s monitoring and control have been is in the Commission’s transcripts.
- We note that the financial arrangements between the federal and provincial governments, whereby the federal government subsidizes provincial and municipal policing in eight provinces, may discourage the provinces from actively asserting their authority.
- In this connection, we draw the Commission’s attention to a report in the Vancouver Sunof July 27, 1978 concerning the reaction of the Alberta Attorney General to the findings of the provincial Laycroft Commission. The Attorney General is reported to have advocated changes in the contract between Alberta and the federal government to give the province greater access to RCMP criminal investigation information and to make the Alberta division head responsible to the provincial Attorney General.
- Given all of this, we urge the Commission to investigate these contracts with a view to ascertaining whether they permit effective provincial control over law enforcement. The provincial constitutional responsibility must be recognized in, and enabled by, the contracts.
- The Commission must consider how RCMP units engaged in law enforcement and “the suppression of crime and disorder”, including the Security Service to the extent that it engages in such activities, can be brought under effective provincial control.
- Structure of the Security Service
- We have little to add here beyond some remarks about police training.
- Police training
- Police behaviour depends fundamentally on police training. We think thatrecent events show a need for RCMP training to include a serious study of the spectrum of political ideologies represented in Canadian political life, and of the political philosophy underlying the democratic and libertarian values of our society. It may be that this could seriously be undertaken only if the educational prerequisites for recruits were upgraded. If so, we strongly urge that this be done. The introduction of studies in Political theory to police training would, we hope, strengthen police understanding of the importance of the rights of individuals in a democratic society.
- Summary of recommendations
- The British Columbia Civil Liberties Association recommends:
- that the “national security” task of police work properly consists in protecting fromsubversion Canada’s territorial rights and right of self-determination and the substance of our traditions of democracy and respect for human rights;
- that, as far as possible, the Security Service be reintegrated into the regular force;
- that insofar as the task of combatting domestic subversion could be assumed by regular criminal investigation units, this task be assigned to regular units;
- that the Security Service be assigned the remaining task of combatting the activities of agents of foreign powers who may be engaging in espionage or seeking to further subversive goals;
- that a distinction be drawn between security clearance investigations which concern positions with access to information which if given to unauthorized persons could endanger national security, and other security clearance investigations, and
- that consideration be given to assigning the latter to some agency other than the Security Service, and
- that collection of information concerning character weaknesses, political preferences, and so on be permitted only in the case of the former investigations;
- that the Security Service not make recommendations in the case of security clearance investigations, but merely collect relevant information;
- that any review mechanism recommended for security clearance investigations extend to non-governmental employees who are required to submit to security clearance by virtue of a contract between the government and a company:
- that police accused of criminal behaviour be subject to prosecution on the same basis as members of the public;
- that there be a federal police prosecutor empowered to prosecute police misconduct independently of the federal Attorney General, and that consideration be given to combining this position with the position of federal police ombudsman;
- that the Marin Commission’s recommendations concerning the federal police ombudsmanand RCMP disciplinary procedures be adopted;
- that the force’s reported policy of supporting convicted members by paying fines and salaries during imprisonment be terminated;
- that RCMP members be guaranteed the same rights in service trials as ordinary citizens have before the regular courts;
- that service trials not be a substitute for trials in the regular court system when criminal behaviour is alleged;
- that any question of the legality of an order which arises in a service court be referred to a regular court for a decision;
- that it be made unlawful to place the activities of persons under surveillance before there is reason to believe the activity is criminal in intent or likely to result in crime;
- that the surveillance of legitimate political activity and any interference with citizens’ right to dissent be made unlawful;
- that evidence obtained illegally be declared inadmissible in court.
- that security operations be controlled by guidelines much more detached than those of March, 1.975; that operational decisions within the guidelines be left to the Security Service or other effectual units of the RCMP; and that extraordinary operational decisions involving grave threats to national security, sensitive political judgement or questionable methods be required to be approved by the responsible minister;
- that there be a small independent non-partisan security commission responsible to parliament
- which is authorized to oversee the Security Service and to scrutinize any proposed security operations by any federal agency, and
- to which the responsible minister is required to refer all extraordinary operational decisions and general policy matters concerning national security;
- that there be a procedure to ensure judicial review of ministerial decisions under section 16 of the Official Secrets Act, and of decisions to issue a warrant under section 11(2) of this Act:
- that there be a procedure to ensure judicial review of all ministerial decisions to withhold documents from the courts, or from provincial Attorneys General in the course of investigations under section 92(14) of the BNA Act, whether these decisions are under theOfficial Secrets Act or under section 41(2) of the Federal Court Act, and that these acts be amended to provide for such review;
- that the War Measures Act be amended to provide
- that invocation of the act will be followed at the earliest possible moment by Parliamentary consideration of the invocation and
- that an independent tribunal be empowered to consider the cases of those held under the act but not charged and to restore them to their “preinvocation status.”
- that no emergency legislation be enacted in addition to the War Measures Act;
- that if the police are to be allowed to engage in electronic surveillance and/or mail opening, this power be subject to the following limitations, which are summarized from paragraph 32 above:
- that judicial authorization be required and that it be given
- only for short periods, and
- only for serious crimes such as those involving subversion or crimes of violence, and
- only if the police can demonstrate that the use of this power is essential to the investigation, and not merely useful, and
- only if the police can show that suspicion of the person in question is reasonable.
- that there be a panel of judges, any one of whom may grant an authorization, and that only judges on this panel be empowered to grant an authorization.
- that notice from the police to persons whose private communications have been intercepted be made within the strictly limited period of 90 days.
- that the responsible ministers be required to continue to publish annually, detailed statistical reports summarizing how this power is used.
- that judicial authorization be required and that it be given
- that the Crown be required to disclose any incentives being offered to any of its witnesses;
- that there be no restriction on defence counsels access to the criminal records of any witness;
- that judges be given the discretion to exclude a witness’s testimony as unreliable if it is revealed that incentives of any kind were used to induce him to testify;
- that the Commission investigate the contracts under which the RCMP providesprovincial and municipal police services in eight provinces with a view to ascertaining whether they permit effective provincial control over law enforcement;
- that the Commission consider how RCMP units engaged in law enforcement and the suppression of crime and disorder, including the Security Service to the extent that it engages in such activities, may be brought under effective provincial control as is envisaged by section 92(14) of the BNA Act;
- that RCMP training courses include study of political ideologies and of the political philosophy underlying the democratic and libertarian values of our society.
We have already made some comments on the Report to the Attorney General of B.C. on surreptitious entries by the RCMP, which Report, we understand, has been forwarded to the Commission of Inquiry. We would like to add a few further comments.
1. Conflict of interest
While the Report to the Attorney Genera makes very weak recommendations, it also reveals that provincial officials (one can only presume that they were officials from the Attorney Genera’s Ministry) had advised the RCMP in the past that “it was not unlawful to enter a premise as long as there was no intention to commit an indictable offence.” This fact naturally casts a long shadow over the Report, since the Government of B.C. could thereby be presumed to have a strong interest in the Report’s recommendations. If provincial officials had given such advice, it was hardly likely that they would recommend any prosecutions (the Report is silent about disciplinary action) in those cases where the conduct of the RCMP was in conformity with that advice. And, more importantly, the tenor of that advice establishes an unsettling perspective on the Report’s recommendations for preventing and dealing with such misconduct in the future.
2. The scope of the investigation
It is clear from the documents which are published in the Report, that the original figure of 402 entries in B.C. was based on the reasoning that most unauthorized entries could be identified by examining the records of the Security Equipment Service of E Division of the RCMP. The Report fails to indicate whether this reasoning was critically examined or whether one of its implications was pursued, notably that there were other unauthorized entries as well. Nor does the Report pursue the intriguing remark in the Telex sent to Ottawa by E Division on January 16,1978, that the proposed terms of reference creating the Security Equipment Section encouraged the view that many of the unauthorized, entries made were legal. Perhaps this issue fell outside the terms of reference of the Report, but we would have welcomed more positive signs of concern. In particular, the Report does not suggest to the Attorney Genera the desirability of further study of the Security Equipment Service’s terms of reference, and procedures to minimize the risk of unauthorized entries in the future. In addition, while the Report suggests that existing police practices do not condone unauthorized entries, this conclusion is apparently based only on the description of operating procedures contained in a written document dated December, 1976, the terms of which seem to us to be ambiguous. Furthermore, that conclusion seems potentially at odds with the January 16,1978, Telex mentioned above which indicates that in the view of the RCMP, unauthorized entries are not illegal “but perhaps ’questionable’” (emphasis ours).
3. The Attorney Genera’s Directive and Its Enforcement
The Directive sharply distinguishes between unauthorized entries as such, and unauthorized entries accompanied by some further indictable offence. For the former it contemplates only disciplinary action, whereas for the latter it will contemplate criminal charges, although neither the language of the Directive nor of the Report generally can be said to betray any great resolve. We did not find any argument in the Report for the difference of treatment. We believe this difference should be looked at in light of paragraph 42 of the McDonald Commission’s Issues Paper, which points out that the view of the Marin Commission on this matter implies “that disciplinary action would not be used as a substitute for criminal prosecution.”
More important, however, the Report attaches considerable confidence to the existing complaint procedures established by the B.C. Police Act in order to ensure compliance with the Directive. This confidence, we believe, is misplaced. In the case of surreptitious entries, it is highly unlikely that there will be a complainant unless the entry fails in its intended purpose of being surreptitious. The Report is regrettably silent on the question of whether any of the unauthorized entries occurred while the B.C. Police Act was in force, and if so, whether any of the incidents was the subject of complaint followed by successful investigation. Our suspicion is that much comfort cannot be taken from the B.C. Police Act for the present purpose, no matter how well suited it is for others.
2. See Borovoy, op. cit. and the statements of Ramsey Clark, the former Attorney Genera of the United States, quoted in Minutes of the Proceedings and Evidence of the Standing Committee on Justice and Legal Affairs, Issue No. 16, June 14, 1973, pp. 16: 7-8.
4. One of the most comprehensive studies of the exclusionary rule is found in “Studying the Exclusionary Rule in Search and Seizure,” Dallin H. Oaks, 1970, 37 Univ of Chicago Law Review 665. Another, more thoughtful view is that of Paul C. Weiler, “The Control of Police Arrest Practices: Reflections of a Tort Lawyer,” in Studies in Can. Tort Law, Linden (Editor) 1968.