Submission to Justice Dennis O'Connor, Commission of Inquiry into the Actions of Canadian Officials in relation to Maher Arar, 2005

January 11, 2005

Justice Dennis O'Connor
Commissioner
Commission of Inquiry into the Actions of Canadian Officials in Relation to Maher Arar
66 Slater Street, Suite 1720
Ottawa, Ontario
K1P 5H1

Dear Justice O'Connor:

I am taking this opportunity to give you my thoughts on a number of issues raised in your consultation paper dated October 2004 and amended in December. As you may know, I have served as the Communications Security Establishment (CSE) Commissioner since my appointment in June 2003.

The duties of the CSE Commissioner as articulated in paragraph 273.63(2) of Part V.1 of the National Defence Act are as follows:

The aspect of the CSE's mandated activities that is directly relevant to some of the points raised in your consultation paper may be found at paragraph 273.64 (1)(c) of the same Act, as follows:

The RCMP is the CSE's primary law enforcement client. While other federal, provincial or foreign law enforcement agencies may be the ultimate recipients of the CSE's assistance, all requests and assistance must be channelled through the RCMP.

It is not my practice to discuss the activities of the CSE, because they are highly sensitive. However, given the CSE's mandate articulated in (c) above, I would like to take this opportunity to provide you with comments, gleaned from my observations since my appointment.

Establishing the right review mechanism

The most important aspect of establishing an independent review function for an organization has, in my opinion, not as much to do with what other review functions do, or how they interact, but rather more to do with the activities and risks associated with the organization to be reviewed. In this regard, an examination of the activities of the Canadian Security Intelligence Service (CSIS) and the Security Intelligence Review Committee (SIRC) as compared with the activities of the CSE and my office may be instructive for consideration in establishing a review function for the national security activities of the RCMP.

As Canada's domestic security intelligence agency, the CSIS interacts and exchanges with Canadian citizens and residents on a daily basis, using programs of varying degrees of intrusiveness, designed to collect information and intelligence about threats to national security and to make assessments for citizenship, immigration and security clearance purposes. As a result, CSIS intelligence officers are drawn into the neighbourhoods of the country on a regular basis. It is right and appropriate therefore, for the mandate of SIRC to be extensive and broad-based, reflecting the fact that the relationship between the CSIS and Canadians is vital, sensitive and ongoing. This relationship is at the core of the Service's activities.

In contrast, the CSE has never had a relationship with Canadian citizens or residents. It relies on a wide range of leading edge technologies to fulfill its foreign intelligence mandate. Its activities serve Canadian interests by collecting foreign intelligence related to the government's priorities. Unlike the CSIS, the CSE's activities involve Canadians only in those instances where, in targeting a foreign communication, it intercepts a private communication using technical means, and treats that communication in a manner consistent with law and policy. It is right and appropriate therefore, for the Commissioner's mandate to be narrow and focussed on lawfulness in general, and the privacy of Canadians in particular.

Options B: Enhanced powers for the Commission for Public Complaints Against the RCMP & C: Creation of a new review mechanism for RCMP national security activities

In my opinion, a combination of options B and C whereby one review mechanism is established to examine all activities of the RCMP would be the preferred option. This could readily be accomplished either by modifying the existing Public Complaints Commission (PCP) and adding the RCMP's national security activities to its responsibilities, or by abolishing the PCP and creating a new review mechanism. The outcome would be the same in either scenario, and responsibility for reviewing the RCMP's law enforcement activities as well as its national security activities would be brought together in one review function.

To my mind, this is the most effective and logical approach: effective, because it recognizes the unique mandate of the RCMP, and provides for a corresponding review body with the required expertise; and logical, because it limits the anticipated change to the CPC and the RCMP, the two organizations that are directly affected. It does not impact on other organizations or review groups in Canada's security and intelligence community where change is neither sought after nor required. It would also result in a narrower interpretation of your policy mandate, although I found the range of options put forth in your paper to be instructive, and useful in helping me to formulate my own views.

Option D: SIRC common to the RCMP and the CSIS

In light of the above, and given the nature of the RCMP's national security activities, option D might be a solution, with certain caveats. On the positive side, the RCMP and the CSIS are domestic agencies, both reporting to the Minister of Public Safety and Emergency Preparedness, and routinely involved in the collection of information largely through human sources. On the other hand, there is a risk of introducing confusion to the role of the review agency, because of the fundamental differences between policing national security versus assessing threats to national security. One wonders what would be gained by giving SIRC responsibility to review activities that the government determined ought to be carried out separately by two distinct organizations with the passage of the CSIS Act in 1984.

As your consultation paper notes, there are also significant differences between the RCMP and the CSIS, including how and why each organization uses security intelligence: the RCMP for prosecutions under the Criminal Code and the CSIS to report on threats to national security. It is also worth noting that since the RCMP is considerably larger than the CSIS, there is a risk that the review of the CSIS could be overshadowed over the longer term.

Option E: SIRC model common to all federally-regulated national security operations

As you know, the CSE reports to the Minister of National Defence through the National Security Adviser, Privy Council Office and the Deputy Defence Minister. As Canada's national cryptologic agency, it collects foreign intelligence from the global information infrastructure using leading edge technologies.

Over the course of its history, the CSE has been called upon regularly to act as an agent of the CSIS and the RCMP, providing both principals with advice, and technical and operational assistance. Before doing so, however, the CSE is required to ascertain that the requesting principal has the authority to make the request, that the request meets a lawful threshold, that any materials provided to the CSE were acquired lawfully, and that the CSE has the authority to provide the assistance that has been requested.

In my view, this type of inter-agency cooperation should be encouraged, however, it is also a compelling argument against combining review functions, which is why I believe this option is not viable. The distinction between entities risks becoming blurred, as I alluded to earlier, at the expense of independent review, and could lead to accusations of real or potential conflicts of interest, and possibly collusion. In your report at page 8 you observe that "(t)he overlap of functions among these agencies and their increasing integration raise questions about whether and how the RCMP's activities in relation to national security can be isolated for review purposes." In my opinion, they must.

This does not mean that there isn't room for cooperation among review agencies, provided always that the principles of independent review and reporting are strictly adhered to. To my mind, however, it remains doubtful whether one review body could conduct effective review of the disparate array of activities conducted by the security and intelligence community overall. While I am aware that this is the practice in other countries, in the case of New Zealand, for example, I would suggest that the deciding factor was one of economies of scale rather than effectiveness, in light of the small size of the agencies under review.

Option F: Parliamentary review/oversight

An important point that I have not seen addressed in any discussion of Parliamentary review of the security and intelligence community in the Canadian context, involves the composition of the Parliamentary committee and its access to classified information and documents. Based on my experience to date, it is not possible to conduct a thorough review of a security and intelligence activity without access to the highly sensitive documents that support it.

It is the practice in Canada, for the composition of Parliamentary committees to mirror the composition of Parliament itself, unless specifically provided for otherwise.

We have all learned from past experience that secrecy and politics do not always sit well together over the longer term. While I have a great respect for our Parliamentarians, some may well have legitimate political interests that run counter to the secrecy that matters of national security impose.

Other matters

Binding / non-binding recommendations

At page 38 of your consultation paper, you raise the issue of whether a review agency's conclusions and recommendations ought to be binding on the organization under review. In my view, they should not. Internally, a binding recommendation risks preempting management's responsibility for the direction and control of the organization. It also runs the risk of preempting the responsible Minister who is ultimately accountable for the organization in Parliament.

The Inquiries Act

You may be aware that the inaugural CSE Commissioner was originally appointed pursuant to Part II of the Inquiries Act. Subsequently in 2001, with the passage of the omnibus Anti-Terrorism Act that amended the National Defence Act and provided a legislated basis for both the CSE and the Commissioner, the Commissioner's powers under the Inquiries Act were continued.

In my opinion, the provisions of the Inquiries Act have much to recommend them for the purposes of review which, after all, is what a Part II inquiry is. You may wish to take these provisions into account in your deliberations about the powers of the review mechanism for the RCMP.

Corrections

Attached to this letter is a list of items I have noted in the event that you plan to update the consultation paper further

My approach to review

You may be aware that I have participated in a number of independent reviews and inquiries since my retirement from the Supreme Court. In each instance I have adopted a purposive approach to my interpretation of the legislation in question.

As CSE Commissioner, and while my mandate clearly articulates my duty to review activities for lawful compliance and to report instances of non-compliance, I also look for the existence of preventive measures that act as a deterrent to unlawful activity.

If I have concerns, my first step is to share them with the appropriate person in authority, in this case the CSE Chief, and those reporting to him. This approach affords them the opportunity to explain to me why my concerns are groundless or to take corrective action, as the case may be. In the end, it is my hope that before submitting a report, the concerns that I have addressed in my report are rendered moot.

I trust these comments will prove useful to you as you continue your deliberations, and I look forward to learning of their outcome.

Yours sincerely,

Antonio Lamer

Corrections

Page 8 para 2 line 3: Communications Security Establishment

line 4: focuses on foreign intelligence

Page 25 para 3 lines 8 - 10: Findings and recommendations in respect of reviews of the CSE's operational activities are provided to the Minister in classified reports. The Commissioner reports to the Minister on his own activities and findings in his public annual report. A copy of this report is then laid before Parliament