A submission of the British Columbia Civil Liberties Association Presented on January 20, 1978 to the Commission of Inquiry Concerning Certain Activities of the Royal Canadian Mounted Police
The British Columbia Civil Liberties Association would like to open its remarks with two observations—general comments on the attitudes being expressed in response to the numerous disclosures of illegal activities on the part of the RCMP Security Service.
First, we think it is dangerously perverse to view the recent disclosures as revealing the need for an extension of the powers of the Security Service. The disclosures have not shown us that there have been authentic threats to Canada’s security which require an extension of power; rather, they have shown us that sanity and perspective need to be restored within the Security Service. The disclosures reveal a series of illegal acts undertaken in response to what can only be described as a distorted and exaggerated idea of what constitutes a threat to Canada’s security. They reveal the need to restore within the Security Service respect for the rights of groups and individuals, not the need to enlarge the Service’s power to infringe those rights.
It seems to us that Canadians must want their Security Service to be used for purposes other than breaking and entering a legitimate news agency; other than secreting away, copying, and returning tapes containing membership lists of a legitimate political party; other than opening first class mail, burning down barns, gathering confidential medical information on suspects, and fomenting violence by the use of forged letters. In our view, a security service should be used sensitively, intelligently, and sparingly. The disclosures about the RCMP Security Service reveal serious contrary patterns. Rather than accepting this as necessary, and even encouraging the Security Service to continue to do the same or even worse, the Canadian public should be asking—what has been going on?
Second: we were hoping that many would have said this to the Commission, but since it has not been reported, we will. What are we talking about here when we talk about “security”? Surely Canadians must recognize that they are secure only when they can experience the security of their own persons and organizations—when they are secure in their right to associate for legitimate political ends—when they are secure in their right to privacy. We have not forgotten, have we, that the “needs for security” that this Commission is considering include the need for individual freedoms, the need to recognize the values of diversity, the need to think as we wish and to be able to express those thoughts freely? The Canadian people are fully justified in wanting to have a diligent Security Service, but that Service cannot act appropriately to protect Canada if it is not respectful of those rights and freedoms that are woven into the fabric of our nation.
The British Columbia Civil Liberties Association believes that there is no more effective security in the long run than that of an informed citizenry. With that in mind, we view this Commission as having a special opportunity to breathe fresh air into the atmosphere surrounding the present discussion of security. Such an opportunity is seldom given; we hope the Commission will seize it.
Thus, along with the Commission’s report, the nation would benefit from a charter of principles which would help define the basic relationship of individuals and the state.
The remainder of our submission reflects our concern that the problems posed by the disclosure of illegal activities on the part of the RCMP Security Service have not been faced honestly by the Canadian people, the Canadian government, or the Security Service itself.
The majority of the general public, having reacted strongly against news of excessive police activity in the name of security when it was reported from other countries, has reacted with narrow chauvinism to similar activity disclosed here in Canada, and has said in effect that the RCMP can do no wrong.
The Canadian government, in the person of the Prime Minister, having stated confidently that the RCMP would not abuse its powers in the same manner as the FBI and CIA, has responded to the recent disclosures about the activities of the Security Service with the suggestion that its powers be broadened, rather than that its criminal activities be curtailed.
And the Security Service, having been forced to tell tales on itself, has adroitly used the Commission of Inquiry set up to investigate its activities as a political forum to impress upon the public and the government its view of its own importance and needs for greater powers in order to keep Canada secure.
And there is the nub of the problem.
The public, the government, the Security, Service, and the Commission—all are caught up in the need to keep Canada secure. Is our Association questioning that need? Don’t mistake us. The BCCLA supports the need to keep Canada secure just as does any other person or group concerned with the life of our people and nation. We do not deny that security is important; we do deny that security is everything. There are other interests that need protection in this country, and when the term “security”—ill-defined, ambiguous, and continually changing in content—is used as the umbrella to cover, and even to hide, a rash of activities that are illegal and that infringe on some of the most basic rights that citizens of this country are said to possess, then we all should be gravely concerned.
What is at stake here? Without claiming to understand it all, we see the main problems, and some attempts at solutions, in the following terms:
I. Basic constitutional and civil libertarian values are being eroded by an overriding zeal for national security when there has been no compelling evidence of serious threats to security that justifies such a loss of freedom.
We do not argue against the need of the state to protect its own security. What we question is the use of the term “security” as providing a license for the RCMP Security Service to undertake any activities that it decides are required. To say that the Security Service does not make these decisions on its own is to ignore the factual evidence that has come before this Commission. The current structure for deciding what is a security threat and what activities are justified and necessary to counter such threats has been patently inadequate to provide the kind of direction and authorization the Security Service must, in a free nation, be governed by.
What has happened in Canada is symptomatic of any country in which a security service becomes virtually autonomous. Setting its own priorities and defining for itself what is a threat to the security of the nation, the Security Service here has exaggerated its mandate and extended its activities into areas where it is jeopardizing some of the fundamental rights on which our society is based. It has often done this despite the lack of clear evidence that the security of Canada is seriously threatened. Without clear evidence there is no justification for the kinds of activities that have been disclosed about the Security Service. Its activities must be seen as the product of the Service’s exaggerated sense of its own importance and a kind of self-induced paranoia.
When discussing the threats to national security that presently exist, the need to counter terrorism is consistently mentioned. Understandably. And we have no sympathy whatsoever for terrorists. We abhor their tactics, their mindlessness, and their evil destructiveness. But it has not been shown that the Security Service needs any greater powers than those it already has in order to continue its vigilance against terrorist activities. it has not been shown, at least not in any way of which we are aware, that the current powers of the RCMP Security Service are in any way inadequate or ineffective for the legitimate security functions it must fulfill.
To say that the Security Service must need the power to engage in unauthorized or illegal acts because they did these things in the past is clearly to argue the wrong way round. The fact that it was done is not a justification; past mistakes are not legitimized by repetition.
Those who argue that the Security Service needs greater powers to deal with terrorism and other authentic threats to our nation must present stronger evidence than they have so far done if they are to convince us that privacy must be invaded, files ransacked, property destroyed, and violence fomented. Individual rights and due process of law are part of the foundation of this nation. Policemen are first of all citizens, enjoying only very few powers in excess of those of all citizens. One clear mark distinguishing free from unfree societies is the marked growth of the powers of the police as contrasted with those of ordinary citizens. In addition, the political rights and freedoms that we have previously mentioned cannot be compromised without a corresponding loss to the society in which we live. Those who wish to curtail those rights must have the strongest evidence possible to demand such curtailment. The onus is on them. Merely to say that the Security Service felt it was driven to the disclosed activities by a threat to security is not evidence that the threat existed, nor that the measures used were necessary to meet it. Neither is it evidence simply to repeat over and over again that a security threat is present. Repetition of the claim may well be the way to produce an atmosphere of fear and anxiety, but it is still not evidence.
Again, let us emphasize that we recognize the need of Canada to protect its own security. What we see in the current disclosures, however, is not a Security Service that needs greater powers to protect Canada. Rather, we see a Security Service that has grown out of all proportion to the threats that can reasonably be said to exist, and one whose excessive zeal has led it to act in ways seriously threatening to the rights and freedoms that the people of this nation are supposed to possess.
II. The response of the federal government to clear instances of illegal behavior on the part of the RCMP security service has served only to obscure the service’s misuse of power and lack of accountability. By failing to focus on what security measures are appropriate to Canada, and in effect condoning excessive police behavior without judging its necessity, the federal government has paved the way for public acceptance of illegal acts by the security service and for public support of unwarranted expansion of RCMP security powers.
Too many people, including members of Parliament, have treated the recent disclosures as if the issues involved were merely matters for partisan political debate. There has been too little sense of urgency about the need to investigate the range, and depths and implications of such activities, which themselves threaten our democracy. There seems to have been too little concern about the nature of the activities themselves, except insofar as they are paradoxically said to show the need for broader police powers.
The cavalier attitude of the government to the activities of the Security Service has been of little assistance to t hose Canadians who are trying to make sense of the role of such a service in this country. Surely that question is one to which the government should address itself. Canada is a country with its own priorities as a nation and its own problems. Our Security Service should be respectful of those priorities and problems. The recent disclosures, however, might easily lead one to believe that the RCMP Security Service has taken as its model the security service of a major world power such as the United States.
It does no disservice to Canada to point out the inappropriateness of that model. Canada has only one-tenth the population of the United States. In world affairs, Canada plays a middling role; she is not a superpower with the problems that follow. This is not to downgrade the importance of Canada’s participation in world affairs. It is merely to point out that Canada is not the United States and fortunately does not have the same needs as regards security.
We have been told that there are about 2,000 members in the Security Service, with no fewer than 300 members in B.C. alone. This is mind boggling. If the true figure begins to approach ours, the Security Service is far too big for its proper role, and thus certainly far too big for the good of Canada. Such a large Service is not only inappropriate to our context in world affairs; it is equally inappropriate to the size of our population and the priorities of our life as a democratic nation.
It should also be noted that the RCMP already has greater powers in the conduct of its affairs than do police in the United States. In Canada, for example, unlike the U.S., evidence illegally obtained can be introduced in court. Writs of Assistance are available to and frequently used by the RCMP. Access to wiretapping is easier in Canada than in the U.S. Because of the parliamentary system and the lack of an entrenched Bill of Rights, the Canadian government in its operation of security and Police forces is not limited by any separation of legislative from executive power, or by the dominant authority of constitutional rights and freedoms. All these factors require consideration in order to assess whether the RCMP Security Service has been acting appropriately in the past, or needs greater powers in the future. The federal government in its public statements, however, has considered none of these things. Instead it has tried to exempt the Security Service from any form of public censure for its illegal acts, and has suggested, in effect, that discussion of the issues end there.
The apparent lack of government concern about the illegalities and infringements of rights perpetrated by the Security Service may seem by some to have been corrected by the establishment of this Commission. After all, it was set up to investigate the illegal acts we have mentioned. This Association welcomed the establishment of the Commission, but we have been concerned from its inception that the government’s purpose in setting it up was more palliative than probative. This concern arises in part from the framework given to the Commission’s work by its terms of reference. No mention is made of the rights of the individuals who may have been subjected to illegalities by the Security Service. The activities under scrutiny are to be examined only as they relate to the RCMP’s security obligations. One can almost read the terms of reference as suggesting that we make legal in a loosely defined way anything that high officials in the RCMP Security Service call necessary in the name of security.
It is instructive to compare these terms of reference with those given in 1966 to the Mackenzie Commission on Security. In the 1966 terms of reference, one of the two specific considerations mentioned as having relevance to the Commission’s work was “the rights and responsibilities of individual persons.” The terms of reference of this Commission are barren in comparison, and we cannot help asking why the “rights and responsibilities of individual persons” were not seen to be relevant to the terms of this inquiry.
We would like to make one comment on the conduct of this inquiry which is that we hope the Commission will see its first concern as dealing with the immediate problem of the RCMP Security Service. Its other tasks are indeed important and require its full attention after the Commission has reported on the matter which is foremost in the nation’s interest.
III. The RCMP Security Service should operate at all times within the normal limits of the law. It has not done so in the past. Without important administrative changes there are no assurances that it will do so in the future. Therefore, the BCCLA supports the changes that solicitor general Fox has proposed to make within the administrative structure of the force, and the establishment of an independent federal police ombudsman to handle complaints related to RCMP activities. But that is not enough.
Newspaper reports of Solicitor General Fox’s proposed changes in the RCMP Act and procedures to make the Security Service, as well as the rest of the force, more accountable, are encouraging indications that the government may be taking the problems we have been talking about with a new degree of seriousness. We are especially pleased that these changes are aimed at curtailing the kind of illegal activities that have occurred in the past, rather than broadening the powers of the Security Service so as to make such activities permissible.
We urge the Commission to consider some further organizational changes in the Security Service that might be additional help in preventing recurrences of illegal activities. As mentioned earlier, the Security Service in Canada appears to operate almost independently, even though it is formally within the general RCMP structure. We think that some of the problems of the Service derive from its separate character, and that one corrective measure would be to reintegrate the Security Service into the general force. It is conceivable that “de-mystifying” the Security Service within the force would help inject some much needed realism into its activities. If security officers reported their activities and suspicions through the same channels as other RCMP officers, it might inhibit the tendency noted before for independent security services to exaggerate their own importance and the significance of their information. Senior officers in the regular force would be able to assess genuine security problems, and might also be instrumental in curtailing the more unrealistic or exaggerated approaches of over-zealous security officers. It would also be useful if officers in the Security service did not view their advancement within the RCMP as dependent on the growth of the Security Service itself. This could be accomplished more easily if the Security Service were treated as just one part of the RCMP rather than an entity unto itself.
Besides making changes within the structure of the RCMP Security Service itself, the government has another important task which it has left undone for too long. If the government is to be seen as honestly concerned about the illegal acts of its police force, it should act immediately to release to the provincial attorneys general information concerning RCMP activity in the provinces, so that the work of the Security Service can be monitored by provincial authorities, and so that any illegal activity can be investigated provincially and prosecutions can be brought if warranted. The Security Service is not, and should not be seen as an illegal force. Comments which in effect commend law-breaking by security officers, and government failure to prosecute illegalities, can do nothing but erode the respect most Canadians have had for the rule of law. In the long run, this kind of erosion can only make the legitimate work of the RCMP and the Security Service more difficult to accomplish.
Ironically, the extra powers used illegally by the Security Service were of very little use to it. There is doubt as to whether the much talked about Japanese terrorist was in fact tracked down only because mail was opened illegally. The other illegal activities have resulted in no known major benefits to this country. Thus we can see that the extra powers sought are not of great benefit to the Security Service; they are, on the other hand, a very great threat to the political liberties of the populace. Moreover, they encourage less reliance on the more limited powers already possessed by the police which are, in the main, effective.
IV. Given the vast resources available to security services and their well documented tendency to operate in isolation from other governmental, political, and moral considerations, effective checks against illegal activities and misuse of power must operate from outside the force as well as from within its own administrative structure. While an independent federal police ombudsman is a step forward in regard to individual complaints, more is necessary to give direction to and forestall excesses within the activities of the Security Service. We therefore propose the establishment of an independent Security Commission, responsible to parliament, to oversee the activities of the RCMP Security Service and to scrutinize proposed security operations. The establishment of such a Security Commission, while perhaps having no exact precedent, has become a historical necessity given the evolution of the powers and resources available to modern security services. Unprecedented problems require unprecedented solutions.
In making this recommendation, we are aware that similar proposals have been rejected in the past by those who see them as totally ineffective, basically impractical or too radical a break with Canadian parliamentary tradition. In our view, the time has come to try this kind Of commission to see if, in fact, it would not be of great benefit. We think, for example, that Opposition based on the fear that a security commission would interfere with the traditional concept of ministerial responsibility is misdirected. Ministerial responsibility today is far different from in the earlier days of our nation, when it was perhaps realistic to hold a single minister answerable for whatever went on in his Department. Today, with the vast expansion of government activity and its accompanying bureaucracy, a single minister cannot possibly pretend to know everything taking place within his Department. The majority of daily departmental activities never reach ministerial consideration or awareness. The civil service is a major source of government power and decision-making; to speak of ministerial control in the face of this change in governmental practices is to speak of an anachronism.
Perhaps even more to the point is the blunt fact that ministerial responsibility in the present matter no longer seems to work as the sole means of holding the Security Service accountable. Whatever the reasons for this, and certainly the growth of the government bureaucracy is one, ministerial responsibility alone cannot be relied upon as an effective means to hold a security service in check. Something else must be tried.
There are those who suggest that the Security Service seek court approval for carrying out security operations that might be outside the normal limits of the law, just as they now seek approval for wiretapping. In the first place, we do not think the Security Service needs any powers beyond those which it already has. But there is another reason why the suggestion is inappropriate.
A judge in a courtroom does not have the resources available to investigate the situation when extra Powers are being sought; he has no firm basis on which to make a reasoned decision. In effect, he has no choice but to go along with the request, relying on both the good faith and the good sense of those who seek his approval. This is not then an effective limitation on the Powers Of the Security Service.
We have no blueprint for an ideal structure that would preclude the Security Service from ever engaging in illegal acts. We think it imperative, however, to attempt to create an independent authority that will keep the Security Service from going off on its own. We think that such an authority should be non-partisan and, while it would report to Parliament rather than to any one minister, its members should not be members of Parliament. The authority might perhaps take the form of a small Federal Security Commission, four members plus a chairman—small enough to handle effective decision-making, but large enough to encompass different backgrounds and viewpoints. The members should be persons of stature and integrity, appointed, say, for a five year rotating term. Whatever form this Commission might take, it would have to have sufficient staff and resources to carry out its own independent assessment of security needs and appropriate security operations. Otherwise, it might as well not exist, for it would have no basis from which to respond to the matters brought before it. Such a Commission should meet regularly, with matters related to security its only focus.
Let us make it perfectly clear that the proposed Security Commission is not intended to extend the legal powers of the Security Service or to exempt it from the normal consequences of illegal behavior. This is not a Commission to decide which illegal activities the RCMP may pursue, and which ones it may not pursue. There are no “permissible” illegal activities for the RCMP Security Service. The purpose of the proposed Commission is to work with the Security Service in identifying and defining authentic threats to security, and to scrutinize proposed operations to see that they are both justified and effective. Furthermore, the Commission would act immediately to bring to the attention of the proper authorities any officers that it found to be engaged in illegal activities.
V. The problems posed by the illegal activities of the Security Service are just one more facet of the dilemma created by the present Canadian government’s fixation on secrecy and its myopic attitude toward freedom of information. The political climate in which the security service operates elevates secrecy to a very high level and undercuts any rational concept of public accountability. We argue that enactment and enforcement of freedom of information legislation would be instrumental in changing the political climate so as to reduce Canada’s present obsession with secrecy and security; to that end, we recommend that notwithstanding the government green paper on freedom of information, this commission vigorously support the enactment of a Freedom of Information Act such as has been proposed by Gerald Baldwin and the Canadian Bar Association.
On February 7, 1977, the Prime Minister told the House of Commons that Canadians do not need as much access to government files as U.S. citizens because Canadian police would not abuse those files as much as U.S. police. Ruefully, what we have learned since about the activities of the Security Service clearly refutes that claim. No single measure is as sure to improve this nation’s genuine security, and its confidence in its government and institutions as opening up its procedures and files to responsible scrutiny. And this same attitude of openness should also govern the Security Service itself. We question the common assumption that the legitimate activities of a Security Service must be entirely covert. The more visible the Service and the more open cooperation it seeks from those it serves, the more accountable and, at the same time, the more effective it will become.
Canada has been drifting steadily into an attitude and a policy which condones the invasion of its liberties. This drift is less the result of malevolence than of sloppy thinking about where the security of Canada really lies. Greater control of the Security Service is essential if the freedoms of Canadians are to be preserved. And in those freedoms, of speech, of association, of press, and all the others, is to be found the only genuine security this or any free nation can obtain.
We must act immediately and forcefully to get our priorities in order, and this Commission has a unique opportunity, even the duty, to lead the way.