SECU Committee Report

A. Urgency of the situation: The O’Connor Inquiry recommendations must all be implemented immediately

The Committee finds it regrettable that the government has not yet established the independent national security review framework recommended by Justice O’Connor. In the Committee’s opinion, and in that of the majority of witnesses, the implementation of the recommendations from the policy review report would give Canadians assurance that the actions of national security departments and agencies are in compliance with the law. Like a number of witnesses, the Committee is of the opinion that the creation of this review framework is also essential to prevent further human rights violations.

The Committee has difficulty understanding why the government wishes to wait for Justice Major’s conclusions before implementing this review structure. Like a number of witnesses, the Committee considers it pointless to wait,[19] since the government could make any necessary changes after reviewing the recommendations of this important commission of inquiry. The majority of the Committee sees an urgent need for action. Without an integrated structure for the full review of national security issues, the government cannot effectively and efficiently protect Canadians from violations of their civil rights and freedoms.

Like Justice O’Connor, the Committee wishes to point out to the government that the implementation of the recommendations from the policy review would yield considerable long-term savings. Witnesses noted that governments have been forced to spend millions of dollars on public inquiries and ad hoc reviews of RCMP activities. The O’Connor Commission of Inquiry cost $15,222,798, while the Iacobucci Inquiry cost $6,019,457.[20] The Chair of the CPC, Paul Kennedy, noted in this regard:

My view is that if you properly constitute a commission with the right resources and powers, you're going to save yourself an awful lot of money. Right now, on national security policing issues, we've got Iacobucci, Major, and O'Connor—who have gone out there and done things—very, very expensive models.[21]

The Committee is disappointed that the government has decided to cut the CPC’s budget. This is especially difficult to understand in light of the serious deficiencies uncovered by the O’Connor and Iacobucci inquiries. The Committee is of the opinion that the government should invest more human and financial resources in independent review bodies in order to prevent the violation of Canadians’ human rights.

In view of the risk of serious civil rights violations that other Canadians may face because Justice O’Connor’s recommendations have not all been implemented and given the need to strengthen the independent review of the RCMP and other national security departments and agencies in order to restore public confidence in the police and the intelligence community:[22]

RECOMMENDATION 1:

The Committee reiterates the recommendation made in its report presented to the House of Commons on January 30, 2007[23] and recommends that the Government of Canada recognize the urgency of the situation by immediately implementing all the recommendations from the Commission of Inquiry into the Actions of Canadian Officials in Relation to Maher Arar.

B. Accountability and Transparency Issues

Throughout the Committee’s review, witnesses expressed concerns about government accountability with respect to the implementation of the recommendations of the O’Connor and Iacobucci inquiries. The witnesses repeatedly pointed out that close to two and half years have passed since Justice O’Connor presented his reports and about eight months since Justice Iacobucci presented his. Yet the government has not released any document that would allow for the evaluation of the progress made in addressing the serious deficiencies identified by these inquiries.

While the witnesses sometimes had different views on the progress made since the release of the O’Connor and Iacobucci reports, most agreed that the government had not effectively communicated the details of the implementation of their recommendations. The information gathered by the Committee clearly shows that many witnesses were not really aware of what progress the government had made in this regard, as the following statements show:

More than two and a half years after the first report was released from the Arar inquiry, there has not yet been any meaningful public reporting as to the implementation of the recommendations. Mr. Arar himself remains in the dark (Mr. Alex Neve, Secretary General, Amnesty International Canada).[24]

The only thing we can say is that while a statement has been made to the effect that 22 of the 23 recommendations have been implemented, there are no tangible outcomes attesting to this. [...] To my knowledge, for now, RCMP officials have merely reassured us that they have taken to account and will implement a certain number of recommendations contained in the O'Connor report. However, there is no mechanism to guarantee that this is indeed the case. There is no proof that changes have been made (Mr. Dominique Peschard, President, Ligue des droits et libertés).[25]

The general comment by Stockwell Day, who was then the minister, on October 21, 2008, that all the recommendations were implemented tells us nothing about the implementation measures and is unacceptable (Hon. Warren Allmand, International Civil Liberties Monitoring Group).[26]

The government’s lack of accountability for the implementation of the recommendations is not satisfactory to the majority of the Committee, especially since accountability is essential to public trust in the security and intelligence community. James Kafieh, legal counsel for the Canadian Arab Federation, stated in this regard:

We are at increased danger from a lack of security and the way the security agencies do their work. The Arab Canadian community lost confidence in Canadian security agencies in large measure from the experience of Maher Arar. And when we saw the treatment of Abdullah Almalki, Ahmad Abou-Elmaati, and Muayyed Nureddin, we understood this was a pattern, that it wasn't just a one-off event but a pattern. And we see the abuse of other Arab Canadians today in other parts of the world—they've already been mentioned—in terms of their perplexing inability to return, with the help of the Canadian government, back to Canada.

We need, as a community, to see evidence of the implementation of all 23 recommendations of the O'Connor report. It's critical that we see it. This shouldn't be something done in secret. It's important for Canada to come clean and to start anew, in terms of building relationships with the communities that are perhaps more critical right now for us to have a good relationship with, so that there is confidence, for example, between the Arab and Muslim communities and Canadian security agencies.[27]

In light of these considerations:

RECOMMENDATION 2:

The Committee recommends that the Government of Canada immediately issue regular public reports on the progress made in implementing the findings and recommendations arising from the Commission of Inquiry into the Actions of Canadian Officials in Relation to Maher Arar and the Internal Inquiry into the Actions of Canadian Officials in Relation to Abdullah Almalki, Ahmad Abou-Elmaati and Muayyed Nureddin.

C. Need to officially recognize the harm done

It goes without saying that the issue of compensation was discussed seriously by the Committee. A number of witnesses urged the government to officially apologize and pay compensation to Messrs. Almalki, Abou-Elmaati and Nureddin for the harm they had suffered. In their opinion, the government must also make every effort to correct the inaccurate information about them held in Canadian records and in those of other countries.

Maher Arar has already been compensated, but Messrs. Almalki, Abou-Elmaati and Nureddin have received nothing to date. The government maintains that issuing an apology could influence the outcome of the parties’ civil actions against the government. Some witnesses dismissed this explanation, pointing out that the government issued an official apology to Maher Arar before his case was heard in court.

Appearing before the Committee, Mr. Geoffrey O'Brian, CSIS, indicated the potential impact of such comments on civil actions against the government. He stated:

Frankly, our instructions, therefore, are not only slight, they are completely and utterly clear: we cannot in fact discuss anything that would indicate that the government is either in agreement with all of the findings or comment specifically on any of the findings. That's why, in my opening remarks, I tried to phrase it generally.[28]

The majority of the Committee does not agree with the government’s position that issuing apologies can influence the course of civil actions. The majority is of the opinion that the government must officially recognize the harm caused to these Canadians:

RECOMMENDATION 3:

In consideration of the harm done to Mr. Almalki, Mr. Abou-Elmaati and Mr. Nureddin, the Committee recommends:

• That the Government of Canada apologize officially to Mr. Abdullah Almalki, Mr. Ahmad Abbou-Elmaati and Mr. Muayyed Nureddin.
• That the Government of Canada allow for compensation to be paid to Mr. Almalki, Mr. Abou-Elmaati and Mr. Nureddin as reparation for the suffering they endured and the difficulties they encountered.
• That the Government of Canada do everything necessary to correct misinformation that may exist in records administered by national security agencies in Canada or abroad with respect to Mr. Almalki, Mr. Abou-Elmaati and Mr. Nureddin and members of their families.

D. Adopting a firm position on torture

The Committee was deeply troubled by the vague statements made by Mr. Geoffrey O’Brian regarding the use of information that may have been obtained through torture by CSIS. When asked whether CSIS uses information obtained by torture, he stated that such information may be used but only when lives are at risk.[29] Following his statement, Mr. O’Brian submitted a letter to the Committee which stated: “I wish to clarify for the Committee that CSIS certainly does not condone torture and that it is the policy of CSIS to not knowingly rely upon information that may have been obtained through torture”.[30]

The Committee understands that the practices of countries with respect to torture change over time, which precludes a static characterization of their respect for human rights. We are of the opinion, however, as are a number of witnesses, that the minister must issue regular ministerial directives clearly prohibiting the exchange of information with countries where there is a credible risk that this exchange could lead to the use of torture or contribute to it. The application of a clear directive on torture would allow for the full implementation of Justice O’Connor’s recommendation 14, which states: “Information should never be provided to a foreign country where there is a credible risk that it will cause or contribute to the use of torture.”

Following his appearance, the Minister of Public Safety sent the Committee a copy of his ministerial directive to CSIS regarding information sharing with foreign organizations. The Committee notes the government’s efforts in this regard but is still not satisfied. Since human rights are the foundation of freedom and justice[31], a directive on torture must be clear and specific.[32] The directive must also be directed to all national security departments and agencies, not just CSIS. Canada must never contribute to the incidence of torture. Consequently:

RECOMMENDATION 4:

The Committee recommends that the Government of Canada issue a clear ministerial directive against torture and the use of information obtained from torture for all departments and agencies responsible for national security. The ministerial directive must clearly state that the exchange of information with countries is prohibited when there is a credible risk that it could lead, or contribute, to the use of torture.

E. Creation of a parliamentary committee to review the activities of national security organizations

Discussions surrounding a potentially larger role for Canadian parliamentarians in the review of security and intelligence activities have intensified since the tragic events of September 11 and the introduction in Parliament of the bill to establish the National Security Committee of Parliamentarians (Bill C-81), on November 24, 2005. This bill, which was supported by all parties, died on the Order Paper just a few days later when the 38^th Parliament was dissolved. The bill would have established a committee made up of no more than three senators and six MPs,[33] with a mandate to review the legislative, regulatory and administrative framework for national security and the activities of national security departments and agencies and any other matter relating to national security referred to it by the appropriate minister.

In 2004, an interim committee of members of the Senate and the House of Commons was given the mandate to consider this issue and report its conclusions. Bill C‑81 stemmed from the conclusions of this interim committee,[34] which recommended in a report presented in October 2004 that a committee of parliamentarians be created to review the security and intelligence communities and to ensure that they respect the Canadian Charter of Rights and Freedoms.

In 2007, after their respective reviews of the Anti-Terrorism Act, this Committee[35] and the Special Senate Committee on the Anti-Terrorism Act also recommended the creation of a committee of parliamentarians on national security, with the mandate of reviewing the activities of Canadian security and intelligence agencies and any security or intelligence matter referred to it by the government.

On March 26, 2009, at an informal meeting in Ottawa, a discussion took place between Members of this Committee and members of the United Kingdom’s Intelligence and Security Committee. The U.K. Committee has extensive powers and a mandate to review the operations of all national security organizations in that country. It reports its findings and recommendations to the Prime Minister. These discussions confirmed the importance of independent review of the activities of national security departments and agencies in order to uphold rights and freedoms. These discussions also renewed the Committee’s interest in the creation of a committee of parliamentarians on national security. In light of these considerations:

RECOMMENDATION 5:

The Committee recommends, once again, that Bill C-81, introduced in the 38th Parliament, An Act to Establish the National Security Committee of Parliamentarians, or a variation of it, be introduced in Parliament at the earliest opportunity.

CONCLUSION

The Committee notes that progress has been made further to the recommendations of the O’Connor Inquiry report. That being said, the fact that the government has delayed the implementation of the recommendations from the policy review is of tremendous concern to the Committee. The Committee maintains that progress will be unsatisfactory until the government establishes the independent review framework for federal departments and agencies responsible for national security, as recommended by Justice O’Connor.

The Committee intends to closely monitor the implementation of the recommendations contained in this report to ensure that the recommendations arising from these exhaustive inquiries do not go unheeded. The Committee is of the opinion that prompt action is required. The government must make the implementation of all the recommendations arising from these inquiries a priority. Acting on these recommendations is extremely important in order to protect Canadians from violations of their human rights and to restore the necessary public trust in the security and intelligence community.

Finally, the Committee recognizes the importance of sharing information with foreign organizations in dealing with national security threats. The measures taken to address those threats and the activities of national security departments and agencies must however ensure the safety of all Canadians while protecting their rights and freedoms. As some witnesses pointed out to the Committee, human rights are a key component of national security and not an obstacle to it.